Judge John Ark Mortgage Fraud

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NEW YORK SUPREME COURT

Wells Fargo Bank, NA3476 Stateview Blvd.

Ft. Mill, SC 29715, plaintiff

VS

Kevin Patrick Brady , defendant

NOTICE OF ANSWERAND CROSS MOTION

# cA 14-00073

BE ADVISED that upon the annexed and incorporated affidavits of pro se defendant,opposition to motion to dismiss appeal and Motion to Show Cause has been filed in thecase above. Owing to an additional Motion for Article [11J Eleven relief, I request anadditional return date to be set by the Court and advised accordingly.

TO THE COURT Be advised that on January 16,2013 I mailed a true and completecopy of the enclosed to the party[s] identified below.

JONATHAN E. SAMONHogan Lovell US LLP

875 Third AveNew York, New York 1AO22

Monroe County Department of Law39 W. Main Street

Rochester, NY 14614

LINDAB DEJOHNNo. O1DE4966323

tlohry Pubtic, Stateof Newyort

APPELLATE DIVISION

Kevin Patrick Brady

508 LocuSt LaneEast Rochester 14445

Jk,/lrrfI

t/^/,, t^,,* uvc5rnruo''e6*;os/oti{Qurlltled in Monro€ CounrvlbttrlcciM Ev^ih neta; r' t lz

I depose under penalty of lawi6at everything contained herein is correct and truthfulto the best ofknowledge, except for mafiers alleged on information and belief and I believe those matters to betrue. Nothing is intended to be frivolous, harassing or completely without merit.

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Wells Fargo Bank, NA

3476 Stateview Blvd.


vs

Kevin Patrick Brady, defendant

APPLICATION FOR

ARTICLE ELEVEN RELIEF

# cA 14-00073

LIFE IN THE GHETTO

I make this application to waive fees and costs of prosecution of this motion because I am

unable to pay them without sacrificing basic needs. I am constructively bankrupt; emoti

and financially. ln the past ten [10] years I have lost every emotional and financial security I

once had. I belive my life expectancy to be down at least twenty [25] five years.

For having exercised my right to petition government for grievances and for representing

myself in courts, I have lost my right to lawfully petition government and to represent myself

in.courts. I have been raped, plundered, tyrannized and defrauded by my state and federalgovernment; under color of law, criminalized, ostracized, disfranchised of my fundamental

rights, driven into poverty and abandoned. Until my government recognizes and confirms

this to be true, I will remain bottlenecked, dysfunctional and immobilized in my home.

As the result of serial protracted incarcerations, I lost my 2A year career in financial services

my professional licenses and credibility and my credit rating, My real property is encum

by multiple VOID judicial liens obtained by fraud, aftomey fraud, govemment attomey fraud,

fraud on the courtls] perpetuated by fraud on the court[sJ, ountless due process iriolbtions,

including continuous denial of aess to courts.

While I once enjoyed a successful professional life, family and social life, I am today, at 63,

unemployed and unemployable in my profession of choice for the last [20] years. My quality

of life deteriorates daily while I wait for courts to provide the mandatory relief I am entitled to

and to restore my civil rights. I'm alive, but living in a constructive ghetto.

APPELTATE DIVISION

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ASSET MIRAGE

ln 2009, I lost my home and property to foreclosure fraud when Judge John Ark signed aproposed summary judgment based on fraudulent mortgage documents and perjuredaffirmations of foreclosure mill attorneys. Without mandatory inquiries he handed myremaining assets over to a now well known corporate fraudster and pretender lender.

While no attempt has been made to enforce this VOID order, I am not able to claim thisproperty as a financial asset. I am not able to sell it or leverage it for the equity I haveaccrued.

ln May 2013 I was forced to take early withdrawal of my Social Security benefits. Thisrendered me no longer eligible for food stamps and medical insurance I had been receivingfrom New York. So I go without the medicines I need

I have no income from profession, self employment, rents, dividends, corporate pension,annuities, disability, life insurance, or inheritance. I have long depleted all liquid assets,retirement accounts and have nothing left of value to sell.

Owing to my decade slide into this abyss I am no longer married. I live alone. No oneany of my household expenses.

Although I am heavily indebted to family and friends who have been supporting me in recentyears, I voluntarily pledge superior lien to this Court for amounts accrued here from thejudgments I am entitled to.

A current financia is attached.

I depose under that everything n is correct and truthful to the best of myknowledge, except for matters alleged on information and belief and I believe those matters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

Kevin Patrick Brady

508 Locust Lane

East Rochester 14445

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Wells Fargo Bank, NA3476 State view Blvd.


vs # cA 14-00073

ANSWER AND REQUESTORDER TO SHOW CAUSE

Kevin Patrick BradyJohn Doe, et al, defendant[s]

Pro se defendant'Brady'comes now to challenge the credibility and merits of putativeplaintiffs motion to dismiss my appeal for the reasons stated herein.

To insure the appeal by right I am entitled proves meaningful, additionalfacts must bedisclosed by the trial court and opposing attorneys before the appeal can be perfectedand presented to this tribunal. Numerous post decision motions to obtain said factshave been submitted, the latest of which has been pending since July 8, 2013. [see A]

To your deponents profound misfortune there is no dignified way to depose to this Courtthat the decisions rendered below constitute continuous intellectual dishonesty; legalfiction and fraud on the court. The fact is that judge John J. Ark and current and previopposing counsels, have 'steamrolled' over every pro se defense I raised from theoutset. This is exemplified by Ark's first order of summary dismissal claming 'no oneheard in opposition'. I submit this to be a cryptic message to say that regardless of themerits of my defenses, pro se litigants will not be heard in Arks court.

And I NEVER have been heard.

Upon review of the annexed and incorporated papers under title below, this Court willconfirm that defendant raised cognizable, non-waivable jurisdictional challenges thathave been repeatedly ignored. The instant affirmations of counselors Jonathon Samonand David Dunn establish they are not fully familiar with the facts or have intentionallyavoided evidence of foreclosure fraud left behind by their predecessors; Steven J. BauAssociates

APPELLATE DIVISION

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I also bring this motion on belief that courts are what they purport to be; and what theyare constitutionally mandated to be; a venue for ALL People, not just those representedby paid members of the Bar. I submit that law in this society should not be only as goodas ones ability to enforce.

To do justice in here, this Court must confirm that the proceedings of Justice Ark wereVOID AB lNlTlO not merely voidable. Movants can and have repeated the phrase'[tJheissue of standing was of neessity decided against defendant' but to the best of myknowledge there is no evidence whatsoever to support the assertion.

Moreover, if movants had any fear of consequences due to non-compliance with 'thenew Rule' mandated by Chief Justice Lippman in October 2010 said phrase would likelynot have been repeated. I therefore request counselor Samon to'atfirm'what hispredecessors would not and were not required to by Justice Ark. [see B]

I request that he read the annexed transcripts of June 19, 2013 and disclose

(a) How and when was standing decided out of some necessity?.

(b) lf counsel was not fully sure of some facts on June 19, 2013 [appeal] doesthis Court have reason to suspect his ,affirmations'now?

[c] Do the affidavits signed by Herman John Kennerty and/or Banett Hemdon deposethat WFB was in possession of the mortgage and promissory note at the time thisaction was originated?

(d) Has Kennerty since admitted in a separate trial being a prolific robo signer andhas thus been dubbed the man with the most job titles in America ?.

[e]Were the signatures on the instant Mortgage Assignments; 'Talin Ghelruandian, andMary Jo McGonran, allegedly as V.P of assigning banks truthfully made in saidcapacities?

THE COURT: would that assignment make any difference? SALMON; We believe NO !

Page [6].

fflWas the alleged note endorsed in blank to WFB ever shown to the court below or topro se defendant?. Are you willing and able to produce it now ?

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AS PER KENNERTY'S AFFIDAVIT, June 12, 2009 [4 months after complaint was filed]

Pg 4, Para 14. Doesn't Kennerty ADMIT that defendant 'generally' challenged WFB forlack of capacity and/or standing and then refers to the challenge as spurious ?.

On the contrary. Wasn't the challenge specific and unambiguous?

Defendant, swom under penalty of law, now deposes answerc to the above foreclosureadion llld on March 31, 2009 and serud on Apfl l, 2009.

1. I dtallenge the FIRST allegation that Plaintiffowns the note and thereforc hasstanding to bring this action.

7. I thercfore reject this amplaint for lack of standing and lack of verification. untildefinitive standing is established, I challenge the nurts juisdiction to prceed.

8. Exept where admitted, orexplained, I denyatl otherallqations.

Pg 4. Parag. 15. When Kennerty says; 'even if defendant made payment, WFB is underno obligation to accept it', doesn't that evidence bad faith; a policy of 'dual tracking' ?

Pro se defendant has made my objections to the egregious and negligent behavior ofthe court AND past and present opposing court officers known on countless occasions.The court has NEVER diligently addressed the merits which are sufficiently known toWFB and its past and current attorneys. lt was attorney Jonathon Samon whointroduced the precedent case in the first place.

Pursuant to wells Fargo Bank Minnesota v. Mastropaolo, # 2006-00417 (N.y.App.Div.(2007) your pro se defendant is not subject to the 'waiver rule,.

However, because I DID challenge the courts jurisdiction at the outset and appeared incourt anyway is not excuse to treat my answers as limitd Notie of Appeanneandlordeclare '[iJn percoman jurisdiction has been anctusivety estabtished'andlor 'no oneheard in opposition'.

The proceedings below were infested with fraud and willful due process violations.

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As a matter of law there is no need/authority to take this appeal in the first place. Arksjudgments have been void, not voidable from the outset. Since the Judge refuses to

allow a pro se defendant to prevailwhile another motion remains pending since July

2013, this Court is constructively the only venue I have.

Mr. Samons' suggestion that the instant appeal and the motion below are purposely for

delay or any other bad faith agenda is self serving, offensive and profoundly ignorant of

the facts. Deponent did not agree to delay the motion until December 2013 and beyond.

As a matter of numerous court records, defendant has petitioned courts prolifically to

remove VOID judgment liens encumbering my property since 2007. Owing to the courts

failure to adjudicate said petitions, putative plaintiff remains complicit in immobilizing

me, a.k.a under house anest since this fraudulent action was filed in March 2009.

SUMMARY

I move this Court for an Order denying the Motion to dismiss pro se defendants appeal,

and declaring, upon due consideration, that the facts alleged herein are true. Granting

dismissalwould only keep me dependant on the trial court when further litigation in this

case becomes necessary and prevent me from avoiding more exercises in futility.

I move for extension of time to perfect this appeal until I am provided from the trial court

the facts I have requested ad nauseum.

Jurisdiction was invoked again on the court below by defendant's affidavit for the

April2013 Order to Show Cause. The pleadings cite three (3) specific reasons forvacating the previous orders and Notice of Pendancy. One [1] has ostensibly been

decided, albeit erroneously, while two [2] remaining reasons were 'overlooked.

Why was it not necessary for this Court to determine these challenges?

ftJhe issue of sanding was of neessilydecidd againstdefendant' but not the issue

defendant raised from outset..

Defendant challenged [1] the alleged chain of assignments [2] the purported chain ofsuccessors by merger [3] the alleged consideration paid and delivery of the

assignments. Why has this trial court NEVER found any trial able issues in all pro se

defensive pleadings?

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Rules of Court require all papers used to dispose of the motion be recited in the courts

disposition. They are not. They require any written opinion or memorandum be filed with

the clerk of the court, unless the order dispenses with such filing. lt does not.

I move for an Order vacating all of Arks judgments, with prejudice, for lack of verifiedjurisdiction to render them and for WFB's foreclosure fraud.

I move for disciplinary sanctions against WFB attorney for failing to disclose the instant

foreclosure fraud as mandated by the Rule of October 2010.

We feet we have an obligation to make sure the attomelrc do their due diligene and@me to us with qedible paWB beau* the onseguenes [of wrongful foreclosuresJ

are so grcaf," Lippman told the New York Law Journal.

PLEASE TAKE NOTE of my Affidavit for Article {11} relief. The injustice I have suffered

from years of pro se abuse is unfathomable.

I request judgment against WFB of $1,200 for having to defend and take additional

collateral actions against them to enforce my rights. I request additionaljudgment of

$25,000.00 for the personal and professional injuries they have caused me to suffer.

AND, I request any and all relief this Court is authorized to provide. I submit that WFB

and its attomeys are in no way prejudiced.

I depose that every thing alleged herein is true, to the best of my knowledge, except where alleged on

information and belief. To those matters lalso believe are true. Nothing is intended to be'frivolous,vexatious or completely without merit'.

ln fact I have never filed any action in any court that legally or @nstructively rose to the level of frivolous,

vexatious, and/or completely without merit. I have not broken any laws, destroyed my own livelihood,

wrongly prosecuted and incarcerated myself, or violated my own constitutional rights. ln fact I have no

complicity whatsoever for the abuses I have suffered. And challenge every allegation to the contrary.

I depose that all annexed documents are true copies of the originals as signed/notarized and submifted tothe court below.

KEVIN PATRICK BRADY508 Locust Lane

East Rochester, New York 14445

!-

M:ery/'1,/

At a SpecialTerm of the Supreme Court forthe State of New York County of Monroeheld in the County CourtftouCe in the City of

?ryY:EililJ'(' 2olsPRESIDIIUG,STIcE

JoHN J. ARKJustice John Ark

NEW YORK SUPREME COURT COUNTY OF MONROE

Wells Fargo Bank, NA3476 Stateview Blvd.


vs

Kevin Patrick BradyJohn Doe, et al, defendant[s]

ORDER TO SHOW CAUSE# M19tO9

, let theupon the annexed affidavits and motion of Kevin patrickWells Fargp Bank appear before Justice John Ark onto Show Cause why the annexed 0rders of Foreclosurejurisdiction

not be vacated forwant ", { :fr q

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sufficient reason having been shown, tet service of a copy of this order and the affidavits

10on lnic!it is based be deemed goodg[dEuqient servica if.,mad6-frilBerore -: .SMo\ rr.-o.r3 "

C \;t"X""::")'''"''"'1 ,' ,lf

Entered 't" W#t fVVk' "; ;.,f'1.- .."4 ::

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'r l<Nevrl/ork Supreme Corrt'-, lp

Copy to Woods, Oviatt and Gilmanattorney's for Wells Fargo Bank

At a Special Term of the Suprerne Court ofthe State of New York, CountY ofMONROE held in the Counfy Courthouse in

h #'i;Jl:/7 ^..i

.4614 on the007 .

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NY 14445

PRESIDING:HON. JOHN J. ARK

Justice of the SuPrelne Court

STATE OF NEW YORKSUPREME COURT: COUNry OF MONROE

WELLS FARGO BANK, N.A.3 47 6 Statei-ew Boul evardFt. MiII, 5C29715

Plaintiff,

vs.

KEVIN PATRICK BRADY,

JOHN DOE (Said name being fictitious,it being the intention of Plaintifftodesignate any and all occuPants ofpremises being foreclosed herein, and

any parties, corporations or entities,if any, having or claiming an interestor lien upon the mortgaged premises.)

X

ORD-ER

INDEX NO.: 4419109

Mortgaged Premises:508 LOCUST LANEEAST ROCHESTER,

SBL #:)51.2',1-1-39

Defendant(s).

Upon reading Plaintiffs Affrdavit of Herman John Kennerty, the Vice President Loan

Documentation of WELLS FARGO BANK, N.A., dated the 12th day of June, 2009, and upon

reading the Summons, Complaint, as well as the Answer submitted by Defendant, KEVIN

pATRICK BRADY, Pro Se,and upon proof that all other defendants have been duly served and

their time to answer has expired or they have filed a Notice of Appearance, and after hearing

Steven J. Baum, P.C., Plaintiffs attorney in this action in zupport of said motion, and after

hearing ^----.^--o '-Ft.--_ in opposition thereto, it

X

is hereby

is hereby

ORDERED, that the Answer of the Defendant, KEVIN PATRICK BRADY, Pro Se, be

and is hereby dismissed and that sunrmary judgment be and is hereby granted in favor of

Plaintifi WELLS FARGO BANI( N.A.; and it is fi:rther

ORDERED, that the Answer of the Defendant, KEVIN PATRICK BRADY, Pro Se, be

treated as a limited Notice of f-ppearance, entitling said Defendant to receive, without prior

notice, a copy of the Notice of Sale, Notice of Discontinuance and Notice of Surplus Monies;

and it is further

ORDERED, that, "John Doe" be dropped as a parfy Defendant in this action as no

tenants reside at the prernises, aad that the caption of tLis action be amended to reflect the

deletion of 'John Doe" as aputy Defendant; and it is furdrer

ORDERED, that the caption shall read as follows:

STATE OF NEW YORKSLIPREME COURT: COLINTY OF MONROE

-------xWELLS FARGO BANK, N.A.

Plainti$INDEX NO.: 4419109

Mortgaged Premises:508 LOCUST LANEEAST ROCHESTER, NY t4445

-3SBL #:151.27-1-39Defendant(s).

X; and it is further

.lr{q ll.r. be appointed

Referee in this foreciosue action to determine the arnount due and to determine whether or not

the premises can be sold in parcels; and it is furtherat

/- OROERED, that by accepting this appoinfrnent the Referee certifies that helslrcis in

vs.

KEVIN PATzuCK BRADY,

x.klbu co.i

a.

Li,ttl.

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i.i.

STATE OF NEW YORKSUPREME COURT COLJNTY OF MONROE

WEI,LS FARGO BANK, N.A.,

Plaintifl,DECISION and ORDER

Index No. 200914419


Defendant.

Plaintiff Wells Fargo Bank, N.A. having moved for a Judgment of Foreclosure and Sale,

and defendant Kevin Patrick Brady having cross-moved for this Court's recusal as presiding

Justice in this action, and to "Vacate Void Proceedings," upon all the papers submitted by the

parties, and upon oral argument on August5,2010 after due deliberation,

It is the Decision of the Court that plaintifls motion be, and it is hereby, GRANTED, in

its entirety, and that plaintiffbe, and it is hereby, awarded a Judgment of Foreclosure and Sale.

It is the further Decision of the Court that the cross-motion of defendant Kevin Patrick

Brady seeking this Court's recusal from further proceedings in this action, and also seeking

vacatur of alleged "void proceedings," be, and it is hereby, DENIED, in its entirety, with

prejudice.

This Decision shall constitute the Order of the Court'

Dated: ry tztLoto,

2'.J:o'

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STATE OF NEW YORK

COUNTY OF MONROE




vs

Kevin Patrick Brady

John Doe, et al, defendant[s]

SUPREME COURT

# M19t09

AFFIDAVIT FOR

ORDER TO SHOW CAUSE

Comes now this pro se defendant pursuant CPLR 5015, S (a) (2) NEW EVIDENCE and

$ 3 Fraud and misrepresentation and $ 4 lac* of jurisdiction to render judgment. Annexedhere as exhibit A was filed by Wells Fargo Bank on July 12,2011 lt establishes that WFBdid not have standing to bring this action.

At the time this action was filed, the subject mortgage had purportedly been assigned to theGoldman Sachs Trust IGSMPS rp1] ostensibly before its closing date in 2005. As to themortgage debt, the rhetoric is ambiguous. Providing that the mortgage and debt had bothbeen lawfully assigned, the only entity with standing to foreclose was HSBC Bank, USANationalAssociation as the Trustee

The Rule in New York is 'a plaintiff lacks standing where there is no proof that both themortgage and the note have been assigned to plaintiff. HSBC Bank llSA v. Miller26,Misc.3d 407 (NY Sup Ct, Sullivan County 2009).

Upon information and belief no proof of this or any other assignment exists. Howevei WeilsFargo is apparently quite busy manufacturing the necessary documents. 1 2

Let's now revisit pro se defendant's answer/defense to this summons and complaint.

t see'Whistleblowe/; Wells Fargo Fabricated and Altered Mortgage Documents on a Mass Basis2 Naked Capitalism;March 7,2013

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Defendant, sworn under penalty of law, now deposes answers to the above foreclosure action

filed on March 31, 2009 and serued April 1, 2009.

/. I challenge the FlRsf albgation that Plantiff owns the note and therefore has standing

to bring this action.

2. I agree with SECOND and THIRD allegations, specifically that the mortgage was

subsequently re-assigned. The party to which I entered into agreement in May 1994 was

Fleet RealEstate Funding Corp

324 West Evans Street

Florence, SC 29501

3. lt is the assignee s burden to show proof of assignment of a particular account.

4. I have lost count of the transfers and/or re-assignments.

5. I therefore reject this amplaint for /ac'l< of standing and lack of verillcatbn. Until a

definitive standing is established, I challenge the murts jurisdiction to proceed.

6. Except where admitted, or explaind, I deny all other allegations.

7. Be it known that I have ben in mortgage default sine November l, 2008. Admiftedly,

an action for foreclosure was inevitable.

So why would a foreclosure defendant admit to default of payment ?

8. As shown within, I have been nnstructively foreclosed from maintaining, renegotiating,

and/or terminating this agreement. Through no fault of my own I have lost my business; myonly source of income. I have lost my professional lirenses, AND, my ability to market the

subjec't propefty has long been impeded by voiigljudgments encumbering the title.

The reason for this destruction is directly attributable to two [2] malicious prosecutions and

two [2] VOID judgment liens both of which were obtained by fraud on and by the court . This

fact is not as irrelevant as it may appear.

9. I have essentially ben under house affest'sine these void judgments were filed. Ihave been denied due pro@ss of law repeatedly to obtain relief from constructive

govemment fraud and other unconstitutional restraints.

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WebCivil Sqrreme - Appearance Delail https://iapps.courts.state.ny.us/webcivillFCASCaselnfo?parm='Appea..

{}}illtT'!Cou rt: Irlonroe Civil SupremeIndex Number: OO44l9/2OA9Case NaMe: WELLS FARGO BANK NA vs. KEVIN PATRICK BRADYCase Type: Foreclosure Conf IneligibleTrack: Standard

Information:AppearanceAppearanceDate12/!8/20r3

L2/ 18/2013

n/ra/2013

07 / 16/20L3

06/rs/7013

06/ 19/2013'ot/lt/zotz'

03/11/20r3

oajrztzoro

08/72/20r0

oa/n/1ora

'oa/os/zoto

:07 /oB/20Lo

'ot/os/zoio'oottoholo

ro/07/loos

rolo r/zoos

10/0 1/2009

'09/22/2009

og/or/zoos

07 /24/2009

Close

iJusdce /lPart:HON. IOHN l. ARK|ARK (Court Activity)IHON, JOHN ]. ARKIARK (Motion Part);HON. IOHN J, ARKIARK (Motbn Part)ixoN.lonn t. nRx:ARK (Motion Part)JHON, ]OHN ], ARKIARK (Motion Part)ir-roN.:onru :. enxlanx lNotirn eart)IHON. JOHN ], ARKlanx lCourt ActNity)

lHoN. JOHN t. ARK,ARK (Motion Paft)JHON. JOHN J. ARK

lnnx lCourt Activity)lHoN. loHN J. ARK

IARK (Motion Part)lnoru.:oNH:. eRx'ARK (Motion Part)

iHON, IOHN r. ARK'AnX.1Rretim. Conference)

;HON. JOHN J. ARK,ARK (Prelim. Conference)jHON. JOHN J. ARKIARK (Court Activity)JHON, JOHN J. ARKrARK (Motlon Part)rHON. JOHN l. ARK:AF{K (Motion Part):HON. JOHN J. ARK

IARK (Motion Part)IHON..IOHN J. ARK

ienX lCourt Activity)iHoN. JOHN J. ARKiARK (Settlement Conference)IHON. JOHN J, ARK

IARK (Motion Part)HON. ]OHN ], ARK

IARK (Motion Part)

MotionrComments Seq,Held

Time

10:00 AM

10:00 AM

tOn ForDisposed

Motion

Motion

,motOn

Motion

iMotion

,Restoreo

Ittot,on

lDbposed

it"t otio n

l

lMotion

,Preliminary

'PreliminJry

Restored

imot,on

iMot,on

fqotron

iosposeo

iAppearanceOutcomePre- Note Post ludgement Restoration

'Motion Decided

,Retum/Submit

Motion Fied

Motbn DeciJed

iRetumTsubmit

inre-lrlote Of Issue Restoration

lMotion Filed

,Pre-ilote Post ludgement Restoration

I

.Motion Decided:iRetum/Submit

lerelmlrary Conference

lPreIminary Conference

rPre-Note Of Issue Restoration!

lMotion Filedi

jmotirn oecded;lRetum/Submit

lPre-Reserved Decbion

lAdjoumed

iMotion Fted

iHeld

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004

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l:Held

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i.!

iSettlement Conference ;settlement Conference

l00l

:99-L:.r0!,1:

:Qol

:s01

iMotionI

Motbn

"no one heard in opposition"??

lof I

Judge John Ark December 17.2409

ltl5l20l4,s:30 PM

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10. Annexed and incorporated here under separate title are the pleadings for pending

Supreme Court action[sJ to, inter alia, vaate said void judgments and to compensate me for

the unfathomabte and unconstitutional losses I have suffered, including the inevitable

foreclosure of my property. Note that the defendants in sard ac'tion[sJ include the instant

Uohn Doe'defendants:.'The PeoPle of the State of New York'

Steven Feder, AftorneY

l l. Pursuant to RPAPL S 202tll where such pafties have an interest the instant complaint

gbe!!! set fot'th: [dJetaited facts showing the particutar nature of the [statesJ interest in or lien

on the realpropefty.

12. RPAPL gl3l I [3J requires ?very person having any lbn or encumbrance upon the real

propefty which is claimed to be subject and subordinate to the lien of the plaintiff.

13. I chattenge every asserted'right'to share in any surplus monies arising from the

possibte sale of these premises. Given such egregious circumstances to which I have had

no control or mmpticity, the relief requested rises to the level of unconscionability.

14. I request all losses I suffer accordingly be reimbursed by the State.

15. Should this action proeed over my expressed juisdictional obiections, I move for the

foltowing immediate reliell To wit; a change of venue.

COLLATERAL ATTACK

A third party action against the above judgment creditors was my only means of relief from

them. Owing to an impulsive, unconstitutional and constructively void pre-filing order 3

issued ln 1996 by Judge Jerome Gorksi; arbitrarily modified by Judge Tom. VanStrydonck

in 2003, I have been blocked of every petition/motion for relief I sought to file. Twice I have

petitioned for relief specifically so as to sell the property to avoid possible foreclosure.

Both were dismissed sua sponte without notice and before answers were filed. Note that

whatever entity repossesses also acquires these fraudulent liens. They won't be able to

resell the property either.

3 a.k.a. 'gatekeeper order'

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SUMMARY JUDGMENT

This court steamrolled over every pro se defense. On August 17,2009 or September 17th or

December 17th 2009,. John Ark'robo signed'the boilerplate proposed order submitted by

Steven Baum Associates ;a giving my property and all the equity in it to the putative plaintiff.

The words 'no one heard in opposition'implies this defendant failed to show to defend the

action. ln fact I appeared for every scheduled appearance [Ex. D ]

Arks order is additionally void for coram noniudice.

FRAUDULENT AFFI DAVITS AND FRAU DU LENT MORTGAGE ASS IGN MENTS

The two mortgage assignments {B and Cl also submitted by Baum attomeys are signed by

now infamous robosigners. Herman John Kennerty has openly admitted being one of the

scandals most prolific robo signers..(See links below)

Exhibit C deposes WFB still owned the mofigage/debt long after the Trust purportedly

acquired it in 2005'. I certify that I have compared exhibits A,B and C to the ones submitted

by Baum attorneys and those on file at Monroe County Clerk Office. They are all the same.

Upon information and belief GSMPS 2005 RP1 was liquidated and/or compensated by the

Troubled Asset Relief Program of October 3, 2008. (including the Federal Reserve's

Maiden Lane Transactions.

As I have deposed essentially ad nauseum "it can be demonstrated, clearly and

convincingly, that AAG Carlos Rodriguez has sentiently set in motion an un@nscionable

scheme calculated to interfere with the judicial system's ability impartially to adjudicate a

matter by improperlv influencing the trier of fact or unfairly hampering the presentation of

opposing partys claim or defense.r *** 5

Before my last remaining asset is lost to fraud, attomey fraud, government attorney fraud,

fraud on the courts perpetuated by fraud on the court, udue process violations and denials

of access to court, the State MUST be accountable for my damages

o Steven J. Baum P.C. has to fork over $4M to settle a probe over its alleged foreclosure abuses. fThomson

Reuters News & lnsightl Mar 232012

s Fraud on the Court as defined in Aoude v. Mobil, 892 F.2d 1 1 1 5, (1989)6

lpted with specificity withinl

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RPAPL 51313 "the state may be made a party defendant to an action for the foreclosure of

a mortgage on real property where it has an interest in or a lien on the property subsequent

to the lien of the mortgage sought to be foreclosed in said action, in the same manner as a

private percon.

Pursuant to CPLR 5015 (4 Xd) this court may direct and enforce restitution in like manner

and subject to the same conditions as where a judgment is reversed or modified on appeal.

I estimate my incidental costs and expenses for trying to be heard in defense of this action

is $500.00 . I request judgment against putative plaintiff'

I hereby depose under penalty of law that everything contained herein is to the best of my knowledge true and

complete and that nothing is intended or rises to the level of frivolous, harassing or othenryise sanctionable.

Kevin Patrick BradY

508 Locust Lane

East Rochester, NY 1 4445

"httrr://stopforeclosurefraud.comArvo-contenUuploads/2010/09/Full-Deposition-of-Wells Faroo John-Herman-

Kennertv.odf"*. '*http://www.whatsignature.com/files/Kenne0 Herman John'1.pdf"".

""http ://www.whatsignature.com/fi les/Kennerty Herman John.2. odf *.

'*htto://www.whatsionature.com/fi les/Kenne0 Herman John.3.odft*.

**http://www.whatsignature.com/fi les/Kenne0 John.pdf*.

"http://www.whatsionature.com/fi les/Kennerty John. 1 .pdf*-.

http://livinglies.wordpress.com/2010/03/29/caryn-a-graham-7oE2o/o80o/o93-mers-assistant-secretaU-bofa-

cou ntrywide-we I ls-fa rgo/

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RELEVANT CITATIONS

"Before a (lender/servicer) can establish a prima facie case and file foreclosure against

a homeowner, [they] must satisfy the threshold questions proving that the mortgage and

mortgage note exist, orvnership of the mortgage, and the defendant's default. see

v. Barba,23 A.D.3d 327 (2d Dept. 2005).

'lf one does not have title to a mortgage, [they] cannot foreclose on that mortgage Kuge v.

Fugazy,145 A.D.2d 537 (2d Dept. 1988).This applies to lenders who are assigned the note

and mortgage from the original lender or from a servicer such as MERS who received as

nominee, or a middle party, ftom the original lender."

'lf a mortgage assignment is dated, notarized and filed in a year after the year set forth

in the name of grantee trust on the Assignment, it is actually an assignment specially, and

[most likely] ftaudulently made to f;acilitate foreclosures. ln many cases, lthese] are dated

after the foreclosure action has been initiated' Fraud Digest, 219110

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This docum€nt grepared bY

and when rccorded lctum to:

W€llr Fargo Homc MorttageAttn: .lacob tlotsch, x9999-018

PO 8or 1629

Minnetpolis, f,4N 55140-9790

lIrllllllrnoate: JutY06,20uLot: alaBlocl:

^leSection: nltAsrfnment of Mortgag.

For valu€ recaived,W€llr f.r1p !tnL, llA1 Homc campus, Dcs Moines, lA 50328

Hcreby sel[ assigns, and translcrs to:HSBC B.nf USA, tl.lbtlC Arrodrtlon el lrustce for GSMP'S 2003-nP1

636 Gr.nd Retency 8lvd., Brandon, FL 33510

Its e.lcras3ors endlot assi8ns, rll its rfht, litle, and alt bcnefichl intercst undcr that cettain Morttage as follows:

Erecution Datc: MaY 16,1994

Legal l{ame: (win Patrick BradY

Fleet Rcal Estate Fundiq corp.

508 tocust t ne, East Rodl6tcr, ilrs Yorl 1t!145' State: tlcw Yo.k

tosn Arnounl:9E5,!rd).00ReeVt"ber: 12219 Page:0538

Ihis Mort8ste w.s thcn esilSn€d bv Flc.t Mon3agc corp. to Bank united by Asslgnment deted ,uv 1:t, 1!x)8 and

rccorded on Ocober 6, 1998 es lnsirument r 199trdt6g131 rnd/or lo Ubcr/Reel 01257, Pate 111)99'

This Mofttage was then rsslgncd by wrshin$on Mutual Eank F/vA washinSton Mutu.l Bank, fA succ$sor bv

mcrger 1.i3lnf unltcd to wals F.rto B.nlt NA by Asstrfient dated J:nuar' 18. 2007 end recorded on Fehuary

9, 2d07 as lnsrumcnt fl Xx)?O2(xtoot2 rnd/or in UberlReel 01961, PeCc 0336'

tclal D$cription: S.e Attached

thls 'srbiln€nt

b not rubiect to the requlrcnrnts of Slction 27S of RCal Property faw beca$c h ts an assiSnment

SiSned this

Stat€ of MtNtrlESOTA

CountY of 0A(OTA

FICCAIFtr

2ll1 JUL tz ?l{ Pi 9rr

il0Hfi{tt couHTY CL[nh

oLo0$rqBau{iciary:

Property Addr63:County:Recording D.te:hstrumcnvcRFN l:

Monro€May 17, 1994

nla

I) ss.

)

,n* 14oap I I *b,e mc,,&4(-/4-6&pcrsonrrlv appcared:

^r IF6 .Lrn0atn . vi.Jfi"siGnr iorn Documlntation, wdb F.rgo 8.nk, t{A' per3onallY known

ffiof gtiifrctorv arttrnce to be dre in(hridoel whos! nt nc'ts ssbscrlbed to the

withtn inrt.ument end actnowle{ed to me thai he/she/ttrey encuted the 5.me in hi:/her/thelr authorired

6paci\{}es}, .nd dlat bv hivh.rn h"r ,ltn"trro on th€ intttumer|l the ilrdlvttual, or th€ P€fson uPon behalf ol

whlch lhe lndlyidual actad, Gtecuted the hstrumcnt, and drat sUGh irdividurl madc ructt an appearance bcfore the

undcrtgncd in D.kot. CountY, state of Minn.iot..

within lhe sccoodary mortgage matket.

Page I of2

Prcarred by: Jacob Notsch ITA

FM8* r 371356892EU{l: 626?886 ^f(GNMA 819112 \\ t-r-..A

AssrcrNuEvr oF uoRrcAeE 'nl'i9.FOR GOOD AND VAIJUABLE CONSIDERATION, tshe sufficiency of whjch iehereby acknowledged, the undersigned,FIEET XOR1.r0AGIE CORP., a Soutsh Carolina Ccrp., whoeeaddrees js 1333 Main Street, Columbia, SC 29201, (assignor),by theae preaents does convey, grant, sell, assign, transfer and setover the described morLgage/deed of trusc togetsher with tshe certainnote(e) degcribed therein with all interest, all liens, and any rightsdue or to become due thereon toBAIIK ITNfTBD, a Federally Chartered Savings Bank, whoseaddreee ia 32OO Southwest Freeway, Suite 1500, Houstson, Tx 77A27its guccegaors or assigns, (assignee).Mortgage dated O5/L6/94 , made byKEVIN PATRICK BNTDYto FITEET REAL ESTATE TUNDING CORP.in tshe principal sum of $86, 900.00 and recorded

i:"i:H l?'i3"*oB"n""3iil",' "?ilo LLql,Lcl

'frmc-)onctrrlE'h

Prop Addr: 5oB LOcusT LAT.IEEAST ROCHESTER, NY 14445 -2OO

which morE,gage has not been further assigned of recordaseignment. notsed the mortgage trras wholly aesigned.This Aeeignment is not subject to the requirementsthe Real Property Law because it is an assignmentmorEgage markets.Darcdr o7/L3/9e

GIJENDAITE, CA 9t 203ie the VICE PRESIDENT

trIrEET UORTGAGTE CORP.Eucc€Fsor by merger

VICE PRBAIDBNT

Stsate of CALIFORNIA County of LOS ANGELESOn O7/L3/98 , before me personally came TALIN GHEYVANDIANEo me known, who being by me duly sworn, did depose and say s/heresides aE C/O 420 N. BRAND BLVD. 4TH FL.

on 05/r7/94in the rffice of the

Pf,tA4--dJ aD

.?Ac)c)tcd-z.-<

F.p$ndcrf,or eac

of section 275 ofwirhin the secondary

and thae e/heof

FLEET MORTGAGE CORP. f/k/a Fleer Real Esrate Funding Corp.succeseror by merger to Plaza Home Mortgage Servicing Corporationthe eorporation described herein and which executed the foregoingineLrument; with Che knowledge and consentr of the board of direc-tore of eaid corporat.ion, and t.hat s/he signed his name theretoin like order.

taryieeion expires .02/25 /1999prepared by:

M.lloy/NTc, 420 N. Brand Bf . 4Property TD(S/B/L| t t57.27-Return by t'tail to:Nationwide Title Clearing42O N. Brand BIvd. 4th FlGlendale, CA 91203

Glendale, eA 91203 (8O0) 345-9152

HE 507HE lllllffi[lnmffifillllffilll$

ITB

' t wl.l,uu r, r rc261lilff3Wclldr 616267t86Pool f: Prlntcs

ASSIGNMENT OF MOR1GACE

FOR GOOD AND VALUABLE CONSIDERATION, thc sufficirncy of which is hcrtby rtrowlodged, rbcundersigncd, WASHINGTON MUTUAL EANK F/ISA WASifINGTON MUTUAL BANIq FA SUCCESSORDY MERGER TO BANK UNITEI}, WHOSE AIDNESS IS 22TO ENTER,PruSE T'RIVE , N'RENCq SC29501, (ASSIGNOR)' by tlrcsc prcscnc dc convcy, grurt, rdl, assign, uansfer ud sct ovcr the dccribcdmortgrgc qcdrcr with lhc carrain rclds) described thcccin ogcthcr with rll intcrcst sccurcd thcrcby, all lins, nduy rights duc or to become duc ihcrcor to WELI,S FARGO BANIq NA, WHOSE ADDRESS lS 1 HOMECAMPUS, DES MOINES,lA gxl2q rTS SUCCpSgOnS OR ASSICNS, (ASSIGNEE). Mo,rterto drrcdOill6lt994, madcby KEVINP TilCKBRADY oFIJ,ETREALESTATEFtIIIDIIIGCORP. indcprircipel rum of $86,9m.m and rccordcd on 0511711994 in Libcr 12219 prgc 0538 , Docf in thc oflrce of lheRcgistry of MONROE County, N.Y.

cloot{h-l

STATETHTS II

Prop Addr: 50E TOCUST LNEAST ROCHESTER, NY 14445

Sce Exhibit rttrcbcd for Arsignmcnts, Modilications acThis Assignnrnt ir nor subj(d to thc rcquisncnb of secrim 2?5 of thc Rcal PDpcrty Lrw bccrusc il ir an

rssignmcnt wi$in tlE sccfidary motgagc merlct.

Drtcd: THIS Y OT JANUARY TN THE YEAR ZI}7w DANK F/tgA WASHTNGTON MUTUAL BAM(, FA SUCCESSTOR Bv

vrcEPREsrDENr r-By Au,z--

SUSAN STnaITMANN rirncsgCOUNTY OFPINEII^S

OF JANUARY tN TIIE YE R 2trt , bc{qc m, thc urdcripcd. pcnondly rppcrred MARYJO MCGOWAN , pcrsonrlly kmwn to mc or prrovod to ms oo thc brsis of ratisficrory cvidcnce to bc the individualwhooc nanrc is subcribed !o tte wi$in anstrument End *knowlcdgcd o nrc thar hc/shc dc.utcd drc remc in his/hcr

crprcity, thrt by hidhcr Eigndure oo fic io$nrrrrcnl, the individual, or thc pctson upon bchalf of which thcindividual rrcd, crccutcd thc,i6turncnt, and that ruch irdividurl rnrdc nrh rppcrnnoc bcfot€ lhc uderrigrcd inPINEII-AS Cunty, StrtcfIl.ORIDA

MARIA LEONOR CB(HOLDT Nolary I'ublic

My oonrmission cxpircs: 05/'2612009

Iloclmcnt Prcprtd By: J. Lcdorki/NTCrl$ All" f9 North' PrtE Hrrtor' fL 3{6183 (t00)3{69152

Propaty ID(S/B/!"): 265$1 15127-l-39Ruurn by Mril ro: Notionwida Titlc Clcrring

2l(trAlt. 19t{ordtPrlm llstc. FL 34683

JPMC WMASN 6857563 CJl2s5()?0 $36.50

EXHIBIT CffiNYl

\\'cb('rr rl Suprcnr - Appcararrcc Dctail hltp //iapps.courls.stalc.rn.u-s/ucbcirtl/FCASCasclnlo'/p:trnrAppcltr

t

\ -tt'

Court: Monroe Civil SupremeIndex Number: OO44I9/2OO9Case Name: WELLS FARGO BANK NA vs. KEVIN PATRICK BRADYCase Type: Foreclosure Conf IneligibleTrack: Standard

Appearance Information:

i t.-

\I rJ 1'"J',1 rlt , I I 'a.l\ t \ x i )

Appearance l

Date ;Time08/L2/2O1O

osf 1.2/zoto

o's/i)izoto '

08/0s/2010 r10:00 AM

i07/08/2010 i10:00 AM

. ....1...07/os/2070

i

oolioT)oiti I.. .l

to/07/2009 i

.1..-... -..- ..t0107/2009 I

70/07/2009 i

..i........oe /zzlz}oe

i

oe/o3/20oe i

ot tz+irjog i

Close

jon ForiDsposect.t...:Motbn

: Motb n

tPrelimirrary

:Preliminary

:Restored

iM;il;;

iMotbn-.i .... ... .. ..

iMotbn-. ' -.. .,.. ,

:Dbposed

iSettlement Conference

iMotbn

iMoti: n

iAppearanceiOutcomeiPre- oecrdecl

,t',totion Lreciiedl

iRetum/Submit]

iPreliminary Conference

Prelrminary Conference

iPre-Note Of Issue RestoEtbn

.Notion fit"O

rMotion Decijed

,Retum,/Submit

Pre-Reserved Decbbn

lSettlement Confercnce

iAdjounredi

lMotion Filed

.Justice /

.Partixoru. lor-rru :. narARK (Court Activity)

'HON. ]OHN ], ARKARK (Motron Parl)iHON. ]OHN ]. ARK:ARK (Motk'n Paft)rHON. IOHN J. ARKiARK (Prelim, Conference)IHON. ]OHN ]. ARK.ARK ( Prelim. Co nference)]HON. ]OHN ]. ARK

. .jiARK.(.Cgurt Activity)IHON. JOHN J. ARK;ARK (Motnn Part)

iHon. :oHu ;. nnx.ARK (Motbrr P.art)

iHON. ]OHN ]. ARKARK (Motion Part)iHON. ]OHN ]. ARKARK (Coud Activity)iHON, JOHN ]. ARK

. j4nx.1 setttemgnt Confierence)

IHON. IOHN J. ARK

:ARK_(Motk,! qad)

iHON. IOHN l, ARKARK (Motbn Paft)

iMotionComments rSeqHeld ,

003

ob:;

Held

!003

t001

:001i

j'

t001

i001

EXHIBIT I)loll 1/tt/2(lll (,.lti PNI

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Ft. Mill, SC 29715, plaintitf

vs

Kevin Patrick Brady


COUNW OF MONROE

MOTION TO VACATE, RECUSE

AND CONSOLIDATE

# 4419/09

BE ADVISED that upon the annexed affidavit of pro se defendant, a motion to vacateprocedurally void judgments has been filed to the Court. for recusal of assigned judge,

and in the interest of justice to consolidate this action with another pending.

Return date is made for 2013. Answers, if any are due on or before

On July 8,2013, I mailed a true and complete copy of the enclosed affidavit to thefollowing parties.

lnformational copy to:


875 Third AveNew York, New York 1OO22

New York State Department of Law144 Exchange Blvd.

Kevin Patrick Brady

508 Locust Lane


I depose under penalty of law that everything contained herein is correct and truthful to the best of myknowledge, except for matters alleged on information and belief and I believe those matters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

/rJ/'

/'JJ1*v't14-rztt\- ll(1, '. ",:ffiffi$i:ffih-1-

July 22,

Supreme Court ChambersState ofNew York412 Hall of Justice

Rochester, New York 14614(58s) 37t-3607

Hon. John J. ArkSupreme Court Justice

Facsimile 784-4218Law Clerk 371-3654

July 17,2013

Mr. Kevin P. Brady508 Locust LaneEast Rochester, New York 14445

Re: Wells Fargo Bank, N.A. v. Kevin Patrick BradyIndex No. 200914419

Dear Mr, Brady:

The Court is in"receipt ofa Motion to Vacate, Recuse and Consolidate with a return date of July22,2013. Judge Ark does not have a motion calendar for July 22,2013. This is to advise that the abovemotion will be returnable before the Hon. John J. Ark on December 18, 2013, at 9:30 a.m.

-ry trulY Yours,

NF. O*oDonna M. OttoSecretary to the Hon. John J. ArkSupreme Court Justice

JJA/docc: Jonathan E. Samon, Esq.

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COUNTY OF MONROE

VS

Kevin Patrick Brady


FOR SERIAL DUE PROCESS

ABOMINATIONS

# 4419/09

Providing this Court READS this pro se affidavit and verifies the merits, it will be clear

that as of law and public policy, the serial summary dismissals of Judge John Ark are

fatally flawed. The Decision and Order of June 27,2013 consisting of barely one [1]

page is VOID for the following reasons. .

This Court claims. '[tlhe issue of standing was of necessity decided against defendant

and constitutes the Law of this Case." This is categorically FALSE. Defendant can only

speculate on why it was necessary to decide against this defendant. but this courts

inclination to steamrollover all pro se assertions and defenses is overtly apparent.

lf the issue of standing was given any thought whatsoever, it would have been clear that

the wrong party suffered summary dismissal. The record is and always has been proof

that punitive plaintiff failed to satisfy the threshold prerequisites for foreclosure. .

The Rule in New York is'a plaintiff lacks standing where there is no proof that both the

mortgage and the note have been assigned to plaintiff . HSBC Bank USA v. Miller26,

Misc.3d 407 (NY Sup Ct, Sullivan County 2009). 'Proof of mortgage assignment alone

is not sufficient to constitute standing in a foreclosure suif

Although these prerequisites were enunciated in defendants responding papers, this

Court steamrolled over them. The OSJ of Dec.17,2009 admits 'no one heard in

opposition'.

There is no Law of the Case because this court made no rulings.

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COUNW OF MONROE

VS

Kevin Patrick Brady


FOR SERIAL DUE PROCESS

ABOMINATIONS

# 4419/09

Providing this Court READS this pro se affidavit and verifies the merits, it will be clear

that as of law and public policy, the serial summary dismissals of Judge John Ark are

fatally flawed. The Decision and Order of June 27,2013 consisting of barely one [1]

page is VOID for the following reasons. .

This Court claims. '[tlhe issue of standing was of necessity decided against defendant

and onstitutes the Law of this Case." This is categorically FALSE. Defendant can only

speculate on why it was necessary to decide against this defendant. but this courts

inclination to steamrollover all pro se assertions and defenses is overtly apparent.

lf the issue of standing was given any thought whatsoever, it would have been clear that

the wronq party suffered summary dismissal. The record is and always has been proof

that punitive plaintiff failed to satisfy the threshold prerequisites for foreclosure. .

The Rule in New York is'a plaintiff lacks standing where there is no proof that both the

mortgage and the note have been assigned to plaintiff . HSBC Bank USA v. Miller26,

Misc.3d 407 (NY Sup Ct, Sullivan County 2009). 'Proof of mortgage assignment alone

is not sufficient to constitute standing in a foreclosure suif

Although these prerequisites were enunciated in defendants responding papers, this

Court steamrolled over them. The OSJ of Dec.17,2009 admits 'no one heard in

opposition'.

There is no Law of the Case because this court made no rulings.

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THE FACTS OF THE CASE

The original complaint [pre-amended] alleged WFB to be'the owner and holder'of thenote and mofigage. These assertions were made not by a Wells Fargo officer but ratherBrad J Davidzik ; attorney for BAUM ASSOCS and upon information and belief only. 1

An affidavit by purported VP Banet Hemdon claims only to have'reyieureclthe originalnote, mortgage and if applicable assignments, kept in the regular @urse of business'. lfthe original note was available to review it was also available to establish standing. ltnever has been produced. The affidavit of Herman John Kennerty claims WFB to be therecord holder of the mortgage, not the owner and fails to mention the note at all.

MANDATORY PREREQUISITES

This issue of plaintiffs standing is necessary because while supreme court has generalsubject matter jurisdiction over foreclosures, it does not have said jurisdiction when aplaintiff fails to state a cause of action. Defendants claim of lack of jurisdiction is justanother way of saying 'this pafticular plaintffi is not involved in a genuine controversy,the aourts have jurisdiction only over controversies; a plaintiff found to lack "standing"does not invoke controversy; and thus the courts have no jurisdiction of the caseplaintiff purports to bring '

Only now does this Court recognizes the necessity of standing and credits defendant forraising the issue. lt is therefore established that defendant was not subject to the lrvairule' of CPLR 3211 This Court also failed to note that'[w]here standing is put into issueby the defendant, "the plaintiff must prove its standing to be entitled to relief' (U.S. BankN.A. v Collymore, 68 A.D.3d752,; see wFB v Mastropaolo,42A.D.3d 23g,Tpzcorp. vDabbs, 25 AD3d 787, Society of Plastics lnds. v County of Suffolk, 77 NYzd761,

'standing "is an aspect of justiciability which, when challenged, must be considered atthe outset of any litigation"l Montano v. County Legislature of County of Suffolk, No.2008-07968 (N.Y.App.Div. 2009)

Here, there was no such consideration.

I 'a slalement by the plaintiff merely indicating the original note is in plaintiffs possession as of the making of amotion "' is insufficient to show that plaintiff had standing to bring the action in the first instance.

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'Challenge to standing requires inquiry into whether the litigant has "an interest in theclaim at issue " that the law will recognize as a sufficient predicate for determining theissue at the litigant's request' (Caprer v Nussbaum 36 AD3d 176, tlz

Here, there was no such inquiry.

Unlike WFB v. Mastropaolo [supral where the Appl. Div. applied the'waiver rule', thechallenge in this case was clearly enunciated in parag . [7] of defendants 'Response'.

Unless the challenged party proves it's standing and or capacity to sue, it fails to state ajusticable cause of action. lt thus becomes a fundamental defect affectinq the courtssubjecl matter jurisdiction.

ADDITIONAL CHALLENGES

Defendant also challenged [1] the alleged chain of assignments [2] the alleged chain ofsuccessors by merger [3] the alleged consideration paid and delivery of theassignments. Why was it not necessary for this Court to determine these challenges?

Defendant cited [4] plaintiff's refusal to name as defendants other judgment creditorsand lien holders. [see RPAPL 1311] This Courts failure to abide by the statute rendersit's judgment VOID. This Court also failed to abide by the rule of summary judgment

\^tith a motion for summary judgment, a courfs task is issue finding rather than issuedetermination ... viewing the evidence most favorable to the opposing party, giving thatparty the benefit of every reasonable inferene and ascertaining wtrether trere existsany triable issue of facf' (Boston v Dunham ,274 AD2d 708,;see Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395,404, rearg denied 3 Ny2d 941

The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to eliminateany material issues of fact from the case. Alvarez v Prospect Hospital, 68 NY2d 320,

[19861; Zuckerman v City of New York, 49 NY2d 5S7, 562 t1980]; Siilman v TwentiethCentury-Fox Film Corp., 3 NY2d 395,404 11g57l).

'Failure to make sucfi a showing requires denial of the motion, regardless of thesufficienry of the opposing papers. Matter of Redemption Church of Christ v Williams,84 AD2d 648,649 [3d Dept 19811; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2dDept 19741; Winegrad v New York University Medical Center, & NY2d 851 t19851).

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'Challenge to standing requires inquiry into whether the litigant has "an interest in theclaim at issue " that the law will recognize as a sufficient predicate for determining theissue at the litigant's request" (Caprer v Nussbaum 36 AD3d 176,182

Here, there was no such inquiry.

Unlike WFB v. Mastropaolo [supral where the Appl. Div. applied the 'waiver rule', thechallenge in this case was clearly enunciated in parag . [7] of defendants 'Response'.

Unless the challenged party proves it's standing and or capacity to sue, it fails to state ajusticable cause of action. lt thus becomes a fundamental defect affectino the courtssubject matter jurisdiction.

ADDITIONAL CHALLENGES

Defendant also challenged [1] the alleged chain of assignments [2] the alleged chain ofsuccessors by merger [3] the alleged consideration paid and delivery of theassignments. Why was it not necessary for this Court to determine these challenges?

Defendant cited [4] plaintiff's refusal to name as defendants other judgment creditorsand lien holders. [see RPAPL 1311] This Courts failure to abide by the statute rendersit's judgment VOID. This Court also failed to abide by the rule of summary judgment

\rvath a motion for summary judgment, a courfs task is issue finding rather than issuedetermination ... viewing the evidence most favorable to the opposing party, giving thatparty the benefit of every reasonable inferene and ascertaining wtrether there existsany triable issue of facf' (Boston v Dunham ,274 AD2d 708,;see Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395,404, rearg denied 3 Ny2d 941

The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to eliminateany material issues of fact from the case. Alvarez v Prospect Hospital, 68 NY2d 320,

[19861; Zuckerman v City of New York, 49 NY2d 5S7, 562 t1g80l; Siilman v TwentiethCentury-Fox Film Corp., 3 NY2d 395,404 11g57l).

'Failure to make such a showing requires denial of the motion, regardless of thesufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams,84 AD2d il8,649 [3d Dept 1981J; Greenberg v Manlon Reatty,43 AD2d 968, 969 [2dDept 1974J; Winegrad v New York University Medical Center, 6,4 NY2d 851 t19S5l).

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Pro se defendants opposing papers were sufficient. The pleadings not expressed in aforeign language, but in English: 12pt. black ink on white paper. This Court steamrolled

over them and additional challenges too. ln fact there is nothing in the record to suggest

that this Court read a single page of pro se defendant's papers.

NEWLY DISCOVERED EVIDENCE

The affidavit in support of Show Cause identified a third assignment that not only fails toprove plaintiffs standing, it contradicts it. As I wrote in 'Rebuttal to Opposition' 'if [my]allegations are true, afforded due process and discovery, WFB's third [31assignmentactually occuned six [6] years before'.

lf this wouldn't constitute fraud on the court to gain standing, what would.?

Why was it not necessary to determine the reason for lack of transfer date on this

assignment? And failure to show the mortgage and note timely transferred to the'Trust'? One way or another a fraud is implicated, be it on the court or MBS investors?This Court failed to issue findings of fact.

Why did this court also not inquire or issue findings on the new evidence that invalidatesthe earlier assignments? lnstead this court disposed of the Show Cause motion thesame way as the main action was disposed: summarily, upon brief boilerplate recitation,and in violation of the same rules as before

"lvith a motion br summary judgment, a coutts task is issue finding rather than issuedetermination ... viewing the evidence most fiavorable to the opposing party, giving thatparty the benefit of every reasonable inference and ascertaining wtrether there existsany triable issue of fac{' (Boston v Dunham ,274 AD2d 708,;see Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395,404, rearg denied 3 Ny2d 941

'A failure to state findings precludes adequate judicial review' (Matter of Simpson vWolansky, 38 N.Y.2d 391; Matter of Pachucki v Walters, 56 A.D.2d 677). Such findingsmust be in a form to enable the party aggrieved to understand its basis'so as to permit

intelligent challenge' *'and adequate judicial revieu/' (Mailer of Simpson v Wolansky,38 N.Y.2d 391, 395. Mafter of Rochdale Mall Wines & Liqs. v State Liq. Auth., 29 A.D.2d647 , 286 N.Y.S.2d 559, affd 27 N.Y .2d 995, 318 N.Y.S.2d 747 ,207 N.E.2d 482)

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DUE PROCESS OF LAW

The Fourth [4thl Department. said in 2002

'Due process considerations mandate findings of fact be made in a manner wherein theparties are assured that the decision is based on evidence in the record, uninfluenedby extralegal considerations, and so both an intelligent challenge by a party aggrieved

by the determination and an adequate judicial review are possible" Perfetto v. Erie Cty.

Water (2002) Matter of Goohya v Walsh-Tozer,292 AD2d 384, see also Simpson v

Wolansky, 38 NY2d 391, 396)

It is unfathomable how an honorable justice of a New York supreme court could give

away a mans home and property to a third party iust for the asking. And when he

OBJECTS he is trivialized and summarily dismissed without findings of fact. This ispatently obscene and uncivilized.

This Courts serial summary dismissals are BOLD, in-your-face violations of my right todue process, equal protection of law, the right to represent myself in court and be

meaningfully heard. They are wanton violations of long established principles of stateand federal law AND they rise to the level of criminal.

They also render this courts judgments VOID and unenforceable. Contrary to this Couassertion, there lS no Law of this Case. This Court made NO RULINGS

INADEQUATE FINDINGS

Jurisdiction of this court was invoked this time by defendant's affidavit in support of theOrder to Show Cause. The pleadings cite three (3) specific reasons for vacating theprevious orders and Notice of Pendency. One [1] has ostensibly been decided, albeiterroneously, while two [2] remaining reasons have been inadvertently overlooked.

ln the absence of unconditional dismissal of all orders, with prejudice, Defendantdemands to put the remaining reasons to a jury pursuant to Rule 4401.

Given the absolutely egregious facts of this case, pro se defendant is absolutely entitledto said relief. Refusalwill be regarded as overt defiance of law and constitutional rightsabuse of power, reckless negligence and deprivation of due process, Unless there isimmediate dismissal defendant demands Stay of Enforcement pending further action.

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ln the final analysis this Court found it necessary to decide against pro se defendant to

preclude me from discovery and show of evidence at trial.

Providing that this court has read this far, Rules of Court require all papers used to

dispose of this motion be recited in this courts disposition. They are not.

They require any written opinion or memorandum be filed with the clerk of the court,

unless the order dispenses with such filing. lt does not.

VOIDruOIDABLE JUDGMENTS

"Cases decided without giving defendant opportunity to be meaningfully heard is a due

process violation rendering the judgment VOID and deprives the court of jurisdiction."

Where fraud is perpetrated on the court any judgment issued is VOID .

A VOID judgment grounds no rights, forms no defense to aclions taken thereunder and

is vulnerable to any manner of collateral attack. No statute of limitations or repose runs

on its holdings, the mafters thought to be settled thereby are not res judicata, and years

later, when memories grow dim and rights long regarded as vested, any disgruntled

litigant may reopen old wound and once more probe its depths. And it is then as though

trial and adjudication had never been. Fritts v. Krugh, 92 N.W. 2d 604, 626

'f]udgments entered where the court lacked either subject matter or personaljurisdiction, or

that were othenrise entered in violation of due prooess of law, must be set aside, Jaffe and

Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D.278.

"A departure by a @urt from recognized and established requirements of law, however

close apparent adherence to mere form in method of procedure, which has the effect of

depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127

P2d 934,937.

"\A/here a court fails to observe safeguards, it amounts to denial of due process of law,

court is deprived of juris.'Merritt v. Hunter, C.A. Kansas 170 F2d739.

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SUMMARY

Defendant submits that this Courts serial summary dismissals rise to the level of

conspiratorial extrinsic fraud and intentional due process violations. The first clue was

when this Court simply acquiesced to WFB's proposed order suggesting that'defendants answer should be treated as a limited notice of appearance'. Even if the

Answer could have been so interpreted it was not iustification for complete dismissal.

Citing MERS lnc. v. Folkes, 18 Misc.3d 1138(A) (N.Y.Sup. O2l05l2008l

[21] '[Defendant] served and filed a motion by limited appearance to dismiss *"on

the ground that this court does not have personaljurisdiction over her. Defendanfs

motion ***' creates an issue of fact a to

render judgment against her (Cordova v Thessalonica Court Assocs., 35 AD3d 256

[1st Dept 20061).

The challenge to WFB standing was another issue of fact prohibited summary judgment.

See Cardova, supra

[23] ln order to establish a prima facie case in an action to foredose a mortgage,

the plaintiff must establish the existence of the mortgaoe and mortoaoe note.

ownership of the mortgaoe. and the defendanfs default in payment (Witelson v

Jamaica Estates Holding Corp. 40 AD3d 2U llst Dept 20071; Campaign v Barba,

23 AD3d 327 lzd Dept 20051).

AND impeded defendant's ability to frame additional issues. Cardova, supra

[25] "[i]t is long held that a mortgage is not valid and enforceable unless there is an

underlying valid debt or obliqation for whicfi the mortgaoe is intended as securitf(see Coronet Capital Co. v Spodek, 265 ADzd292,292 [2d Dept 1999], citingBeck v Sheldon, 259 NY 208 [1932], and Baird v Baird, 145 NY 659 [1895]; accordTornatore v Bruno, 12 AD3d 1115 [4th Dept 2004]). Accordingly, plaintiffs noteand mortgage are invalid if there is no consideration for them (see Tornatore v

Bruno, supra lmortgage void for lack of consideration]; Coronet Capital Co. v

Spodek, 265 AD2d 292, supra [mortgage invalid and could not be foreclosed,

because mortgage was not given as security for valid debtl).

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NO JUSTIFICATION TO DISMISS ANSWER

The Fourth Department says; "Even in cases where the [tactic] has been willful, courts

have required that it be "blatantly contumacious" before imposing the ultimate penalty ofstriking a pleading (Spancrete Northeast v Travelers lndem. Co., 99 A.D.2d 623,624).

Striking is usually reserved for the case in yyhich the non-complying party has engaged

in a pattem of "dilatory and obstructive conduct" (Horowitz v Camp Cedarhurst, 119

A.D.2d 548, 550) Gaylord Bros. v. Rnd Company 523 N.Y.S.2d 4;134 A.D.2d 848(1987

I.AW OF THE CASE DOES NOT APPLY HERE

?s a threshold matter, in determining whether law of the case applies, the procedural

posture and evidentiary burdens of the litigants must be considered. See e.g. 191

Chrystie LLC v. Ledoux, 82 AD3d 681, 920 N.Y.S.2d 324 (1st Dept 2011); Tenzer,

Greenblaft, Fallon & Kaplan v. Capri Jewelry, 128 A.D.2d467,513 N.Y.S.2d 157 (1st

Dept. 1987) (denial of motion to dismiss does not establish law of the case because it

looks only to the sufficiency of the pleadings).

This Court claims'[t]he issue of standing was of necessity decided against defendantand constitutes the Law of this Case.' Defendant says 'on the contrary'.

'bw of the case' seeks to prevent relitigation of issues of law that have already beendetermined at an earlier stage of the proceeding. Here, there was no such determina

The doctrine applies only to legal determinations that were necessarily resolved on themerits in a prior decision. Here, no determination 'on the merits'was even possible. Therecord remains devoid of foreclosures prerequisites.

The doctrine may be ignored in extraordinary circumstances such as a change in law ora showino of new evidence' (Brownrigg v New York City Hous. Auth., 29 AD3d721,722r. Feinberg, Etc v. Boros, Esq., et al, (N.Y.App.Div. 0911112012) law of the case is

inapplicable where nar evidence emerges later in the proeeding.' [Fienberg supraJ(see also Sea Trade,79 AD2d at 602)

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NEW EVIDENCE

Clearly, this Court does not want to confront the newly found evidence'. lt might then

have to alter it's earlier ruling.

'The law of the case is not implicated when a court alters its own ruling' Yetnikoff v.

Mascardo, No. 735C (N.Y.App.Div. 2009 (Wells Fargo Bank, N.A. v Zurich Am. lns. Co.,

59 AD3d 333, 335 [2009]

'When the court has decided one summary judgment motion by a party, absent newly

disovered evidence or other sufficient cause, the court must deny a subsequent

summary judgment motion by that party and consider the decision on the initial motion

the law of the case'. Fielding v. Environmental Resources Mgt. Group, 253 AD2d713(1st Dep't 1998); Smith v. Metropolitan Transp. Auth., 226 ADzd 168 (1st Dep't 1996);

Beagan v. Manhattanville Nursing Care Center, 176 AD2d 633, 635 (1st Dep't 1991).

"[E]very court retiains continuing jurisdiction to reconsider its [own] prior interlocutory

orders during the pendency of the action" (Wells Fargo Bank, N.A. v Zurich Am. lns.

Co., 59 AD3d 333 [2009]) (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do

so "regardless of statutory time limits conceming motions to reargue'

Citing Deutsche Bank National Trust Co. v. McRae, 27 Misc.3d 247,894 N.Y.S.2d72O

(N.Y.Sup. 01t25t201o)

[31J Although recent decisions by the Second Dept. have held that a defendant

waives standing where it is not raised in the ansler or pre.answer motion to dismiss..

( see, Wells Fargo Bank Minn. v. Mastropaolo,42 A.D.3d 239,244,837 N.Y.S.2d247

[2nd Dept.2OO4; HSBC Bank USA v. Dammond, 59 A.D.3d 679, 680, 875 N.Y.S.2d

490 [2nd Dept.2009l; Countrywide Home Loans, lnc. v. Delphonse, 64 A.D.3d 624,625, 883 N.Y.S.2d 135 [2nd Dept.2009] ), those cases are distinguishable. ln both

Mastropaolo and Delphonse, the defendants filed answers containing either

counterclaims or affirmative defenses, without asserting a standing defense Isee,Mastropaolo,42 A.D.3d at240,837 N.Y.S.2d247: Delphonse, tr A.D.3d at 625, 883

N.Y.S.2d 1351.

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[32] Today, with multiple (and often unrecorded) assignments of mortgage obligations

and multiple securitizations often related to the same debt, the courts should carefully

scrutinize the status of parties claiming the right to enforce mortgage obligations. For

the unrepresented homeowner, the issues of standing and real party in interest status

of the foreclosing party are never onsidered. Without such scrutiny, there is risk the

courts will give the judicial 'seal of approval'to foredosures against unrepresented

homeowners who have little, if any, understanding of these issues, mucft less the legal

significance thereof. To quote my colleague in Kings Coung, "lalllowino this case toproeed on behalf of a plaintiff without standing at the commencement of the action

rvould [alsol ooen Sre door O ootentialfraud and olace in ieopardy the inteoriV of title

to the property to be foreclosed.' I Bowling, supra at p. 41.

This Court has clearly and repeatedly demonstrated overt lack of interest for carefully

scrutinizing WFB's standing to foreclose. This Court is clearly more interested in

defendants pro Se status and not allowing me to progress to discovery. I submit thispresents as'Due Process Gone Wild'.

I move for the following relief.

RECUSAL, CONSOLIDATE ACTIONS, PURGE MY RECORD OF VOID JUDGMENT

LIENS AND AWARD COMPENSATORY AND PUNITIVE DAMAGES,

This consistently cheated pro se litigant does not wish to file and/or pay for any more

pleadings, answers, motions, cross motions, andlor appeal briefs in multiple copies thatno one reads an) i/ay.

As a matter of record I have petitioned supreme court four [4] times to VACATE the two

[2ljurisdictionally VOID judgments that encumber my property, pollute my personal andprofessional records, licenses, credibility, credit rating and thwart my ability to earn a

living in my profession of choice since 1991.

Despite four [4] lawfully commenced emergency pleadings to rid my life and property of

these impediments, I have only been further impeded and in fact immobilized by this

Courts summary judgment of foreclosure in December 2009. Note that I took these

emergency actions long before the scandal of foreclosure fraud deteriorated real estate

values to unprecedented levels.

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I ag[n move for RECUSAL of John Ark. I should NOT be further impeded by his

steamrolling, pro se prejudice and criminal negligence.

I move to consolidate this action with another; 2 recently commenced and pending

answers from the Attorney General and Attorney Steven Feder. This should have been

ordered the first time around.

RPAPL 51311 [3] requires'every person having any lien or incumbranoe upon the

real property claimed to be subject and subordinate to the lien of the plaintiff.

RPAPL S 202t1lwhere such parties have an interest the instant complaint shall

set forth: [d]etailed facts showing the particular nature of the [state's] interest in or

lien on the real property.

RPAPL S 1313; 'the state may be made a party defendant to an action for the

foreclosure of a mortgage on real property, where it has an interest in or a lien on

the property subsequent to the lien of the mortgage sought to be foreclosed in

said action, in the same manner as a private person.

Let the courts and all parties allow me to prove in court that said crippling judgments and

other restraints were obtained by fraud, 3 attomey fraud, government attorney fraud, and

fraud on the courts perpetuated by fraud on the court, AND by gross deprivation[s] ofdue process, equal protection and meaningful access to my courts

Let us all confront the life altering destruction I and my family has suffered from serial

malicious prosecutions and protracted incarcerations for simply having exercised my

First Amendment right to represent myself in court. As I have alleged ad nauseum.

"it can be demonstrated, clearly and convincingly, that [former ] AAG Carlos Rodriguez

has sentiently set in motion an un@nscionable scheme calculated to interfere with thejudicial system's ability impartially to adjudicate a matter by impropedy influencing thetrier of fact or unfairly hampering the presentation of the opposing party's claim or

defense." *" 4

2 Brady v People of New York by Anorney General and Steven E Feder defendants. #2013-0533 pled with specificitya Fraud on the Courl as defined in Aoude v. Mobil, 892F.2d 1115, (1989)

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WHERE IS MY COURT OF EQUITY?

? foreclosure action is equitable in nature and triggers the equitable powers of thecourt (Notey v Darien Constr. Corp.,41 NY2d 1055, 1055-1056 [19771). Once equity isinvoked, the court's po,ver is as broad as equity and justice require.' (Norstar Bank vMorabito,2ol AD2d 545 [2d Dept 19941)." (MERS v Horkan(68 AD3dg48 [2d Dept

20091). (See Jamaica Sav. Bank v M.S. lnv. Co.,274NY 215 [1937j).

"Since it is the plaintiff lender who seeks equitable relief from this @urt, the onus isupon lender to satisfy the requisites of equity and come to this court with clean hands.'(Junkersfeld v Bank of Manhaftan Co.,25o App Div 646 Dept 1937].)" (M & [alTMtae.Corp. v Foy.2O Misc 3d 274, [Sup Ct, Kings County 2008]). (Wells Fargo Bank, N.A. vHughes.27 Misc3d628,634 [Sup Ct, Erie County 2010]).

"A principal of equity is'[af wrongdoer should not be permitted to profit from his or herwrong ". (see Kircchner v KMPG LLP. 15 NY3d 446, 4u 120101; Campbeil v Thomas.

73 AD3d 103,116 [2d Dept 20101; Beaumont v American Can co.,215 AD3d z4g

[19951)." (Norwest Bank Minn. N.A. v E.M.v. Realty corp.,84 AD3d 83s, g3o [2d Dept20121).

THIS COURT IS IGNORING FRAUD ON THE COURT ?

With courts throughout New York and in fact the nation becoming aware of fraud anddeceit by TBTF banks in foreclosures why is this court ignoring it ?

'JP Morgan Chase Bank, Nad. Assn. v Butler I NYSC- Judge Schack DestroysChase and Fannie - CHASE-instant action, committed a fraud upon the Court byclaimino to be the plaintifF -

Supreme Court, Kings County Decided July 5, 2013

See Exhibit A

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ln the final analysis WFB knew that they lacked standing to commence this foreclosurebut they wanted a judgment MORE than my property. This Court has granted three [3]summary judgments without regard for the facts or pro se allegations or the evidence.

As the result of fraud, greed and consistent due process violations I have not been ableto sell or maintain the property since two [2]jurisdictionally void judgment liens wereissued in 2001-2003. I have been immobilized, under arrest to a house worth less thanthe cost of exit and arbitrarily taken from me with just a scribble of a pen AND with'no one heard in opposition'.

JUDGMENT CREDITORS

This property cannot be sold without confronting these liens which total 25k-30k. Thealleged judgment creditors have first option to buy. As a matter of law I am entitled today in court to prove the unfathomable losses I incurred. That is the basis forconsolidation into one plenary action.

This is cleady not going to happen with Judge John Ark presiding. I am aware that

'[t]he question of whether a Judge should recuse himself to avoid an appearance ofimpropriety is a matter left to the personal conscience of the court. And yet, in this case,an appearance of impropriety is undeniable.

I submit that the serialsummary dismissals by this Court are a subterfuge to deprive meof progressing to discovery and showing of evidence. I am entitled to my day in couftand an honest impartialjudge to state adequate findings for appellate review.

' A judgment is the determination of the rights of the parties tttttttt A judgment SHALLrefer to, and state the result of, the "'decision, or recite the defuult upon which it isbased. (cpLR 5011) The word 'shall' makes such findings mandatory'

This motion comes because this Court has consistently deprived me of the right todefend my home and property from widely known charlatans.

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TH|S ACTTON IWASI tS TNFESTED W|TH FRAUD AND BAD FAITH

"[p]laintiffs attempt to foreclose upon a mortgage in which he had no legal or equitableinterest was without foundation in law or fact." (Katz v East-Ville Realty Co.,249 AD2d243l1d Dept 19981). "The foreclosure of a mortgage cannot be pursued by one who hasnot demonstrated right to the debt.' (Bank of New York v Silverberg, 86 AD3d 274,280[2d Dept 2011]). -

ln HSBC Bank, USA v McKenna (37 Misc 2d 885, 905 [Sup Ct, Kings county 20i21),Court provides a lengthy discussion as to the meaning of "good faith,"

"[glenerally, "good faith" under New York law is a subjective concept, "necessitat[ing]examination of a state of mind." (See Credit Suisse First Boston v lltrecht-America Fin.Co., 80 A.D.3d 485 , 487 [1st Dept 201 11, quoting Coan v Estate of Chapin, 156 A.D.2d318, 319 [1st Dept 1989].) " Good Faith' is an intangible and abstract quality with notechnical meaning or statutory definition." (Adler v 720 Park Ave. Corp.,87 A.D.2d 514,515 [1st Dept 1982], quoting Doyle v Gordon,1s8N.Y.s.2d24B,2s9 [sup ct, NyCounty 19541.) "lt encompasses, among other things, an honest belief, the absence ofmalice and the absence of a design to defraud or to seek an unconscionableadvantage.' (Doyle v Gordon,158 N.Y.s .2d at25g-260; see also ucc 1-201 tlgl f

Good Faith' means honesty in fact in the conduct or transaction concerned". "Goodis... lacking when there is a failure to deal honestty, tairly, and openly.' (Matter of CITGroup/Commercial Servs., lnc. v /60-09 Jamaica Ave. Ltd. Partnership,.25ADJd_30'1,303 [1st Dept 2006J; see also Southern lndus. v Jeremias, 66 A.D.2d 178, 183 [2d Dept19781.) "ln New York, as elsewhere, good faith'connotes an actual state of mind-a staof mind motivated by proper motive." (polotti v Flemming, nll.u geA, 19601).

ALL DEFECTS SUMMARILY DISMISSED WITH OPPORTUNIW TO SHOW PROOF.

"[E]very court retains continuing jurisdiction to reconsider its [own] prior interlocutoryorders during the pendenry of the action" (Wells Fargo Bank, N.A. v ZurichAm. lns.

co., 59 AD3d 333 [2009J) (Liss v Trans Auto Sys., 68 Ny2d 1s,20 [19961),

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New York courts have unanimously recognized that in appropriate casesinherent power to make orders that will correct evils, preserve rights andto innocent parties. I submit that this is a very appropriate case. Andeven act like a court.

they have

prevent injury

yet this Court wont

"'.-the law makes a promise. The promise is neutrality. lf that promise is broken, theceases to exist' Without honest and impartialjudges, nobody's property or person issafe and, indeed no document, even the Constitution itseff, is enforceable.

Justice Anthony Kennedy, U.S. Supreme Cou

As a matter of law this Court MUST vacate all previous judgments with prejudice oRissue findings of facts sufficient for appellate review. I move for an award of $15,000.00against wFB for putting me through this for damages and expenses.

so we can all be sure who really owns this mortgage and note andof ownership with certainty I request this court to sign the annexed

to establish thesubpoena.

) ft Thq/ KEV,N'ArR,.K BRAD,\- / 509 Locust Lan

I East Rochester, New york 1444

I s85 381 206I

\I depose under penalty of law that everything containdd herein is correct and truthful to the best.of myknowledge, except for matters alleged on information and belief and I believe those maners to be trueNothing is intended to be frivolous, harassing or completely without merit.

I- li'4 / t t

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NO APPELLATE JURISDICTION FOR VOID AND/OR NON-FINAL JUDGMENTS

A void judgment will not support appeal." Madden v. State, [Ms. CR-g 2-1671, Jan 20041

wall street Deli, lnc. v. Boston old colony lns. co., 110 s.w.3d 67, (Tex. App._Eastland 2003, (appeal of void judgment should be dismissed for want of jurisdiction);Mellon Service co. v. Touche Ross & co., 946 s.w.2 d g62,g64 (Tex. App._Houston[ 1 4th Dist.] 1 997, no pet. ) (court of appeals has no jurisdiction to consider merits ofappealfrom void judgment

).

"[A] judgment entered without subject-matter jurisdiction is void, ... and void judgmentwill not support an appeal." K.R. v. D.H., 9gg so.2d 1050, (Ala. civ. App. 200g).

"an appeal from a void judgment must be dismissed. See, 9.g., Luken v. BancBostonMortgage corp., 580 so. 2d 578,581 (Ala. 1991). Because appealcannot be takenfrom a void judgment, we dismiss [thisl appealfrom the trial@urt,s order

"the trial court was without jurisdiction to rule on Appellants motion and the judgmententry from which Appellant attempts to appeal is a nullity. This court is withoutjurisdiction to rule on appealfrom a void judgment below. As such, ws dismiss [thiscasel for lack of a final, appealable order. Gordon v. Gordon, (ohio App. Dist.s (2009)

nve have no jurisdiction over an appeal from a void judgment below. Rahim v. superiorRestaurant, tnc., 2005 -ohio- 1963 (ohio App. Dist.g C!,t2gr2oos)

"A void judgment can be attacked in post-oonviction relief proceeoings even if thematter could have been, but was not, raised on direct appeal. State v. perry (1967), 10Ohio St.2d 175,39 O.O.2d 189,226 N.E.2d 104,

"since an appeal cannot arise from a void judgment, the trial courfs judgment entry isnot a final' apoealable order. Novastar Mortgage, lnc. v. Akins, 2o0g -ohio- 6055 (ohioApp. Dist. 1 1 1 1 tZ1 t2OO8)

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lP Morgan chase Bank, Natl. Assn. v Butler INYSC- Judge schack Destroys chase andFannie - cHASE..,instant action, coMMlrrED AFRAUD UPON THE COURT BY CLAIMING TOBE THE PLAINTIFF -

Decided on July 5,2013

Supreme Court, Kings County

JP Morgan chase Bank, NationalAssociation, AS puRcHASER oF THELOANS AND OTHER ASSETS OF WASHINGTON MUTUAL BANK,

FORMERLY KNOWN AS WASHINGTON MUTUAL BANK, FA (THE "SAVINGSBANK") FROM THE FEDERAL DEPOSIT INSURANCE CORPOMTION,

ACTING AS RECEIVER FOR THE SAVINGS BANK AND PURSUANT TO ITSAUTHORIW UNDER THE FEDERAL INSURANCE ACT, 12 U.S.C. S 1821 (d)

3415 Vinson Drive corumbus, oH 43219, praintiff,

againstFrederick Butler et. al., Defendants.

EXHIBIT A

$uprerne (fourt rrf tgc gtstr of !(cur Sorh

LtL.r'.s Tf"<tu '&trl{ /{A Jt'orcutl- SrnporrilDucrs Tucurr

&/rflr<,lr UtoW-

Trm kopr.E oF rsr Sr..rrr or Nrw yonx

Gnrrnxc, C:rz A'3f41*,l4tt'?<olr.FYou .lnE Hunrnv

rCoy}.l,roun, thal all business and e(cuses being laid reide, you appearl"b* J-/Db? ,Vft{ QnlO, Supreme Cotrt of the State of N"*'york 4r/l tu,Jicial

3,'filT"lt': 1:',\ :,;:,'' f"'^t* " % _tg*rr*(^Srt{!iS rK";and produce at that timc md place: T-U The entire case fite in the abov+entitled mattcr, bearing tnclq n, 4{f 2 /O2

/L. Trr,7s hoe*/'{'iJ il ltwei€'and/or

o

now in your custody.

In licu of a personal appearurce, the rerluirements of this subpoana rnay be rnet by delivc.ry,fthe rnaterial by mail .tr orr.rnight delivery ,"*'i".. provrded ttr"i iiir'r*;;; on or betbre the returndate set forth herein.

Failure to comply with this subpoena is ptrnishabte as a conrempt of court mr6 shalt make youliable to thc person on rvhose bchalf this s'bp'en" * r*""4 tor a pcnitty n.u ro exceed tifty rtollarsirrrcl all danages sur-stained by reason of your failure to e-omply.

r'

Wt'rlress,tlay of , f0

('lerk of this Court, at the

Anoma(r) frr'

C)ffce ad Fo:r Offi.-e,\ddrerrClert

' July 8, 2013

To;

CTLA Structured products10 East 40th Street14th FloorNew York 10018

Re; Mortgage Documents for 508 Locust Lane, East Rochester Ny 14445Home Owner Kevin patrick Brady

Dear Sir or Madam:

Pursuant to the annexed subpoena: please provide the court

1. A full, double sided, certified 'true and accurate" copy of the originalpromissory note and security instrument and all assignments of the securityinstrument.

2' Full name, address and telephone number of the actual entity that funded thetransactions through to present

3' Full name of Trust where the Note Number is trading, or has traded, and theidentifying Series of Certificates.

4. Full name, address, and telephone number of the Trustee.

5' Full name, address, and telephone number of the Custodian of my originalPromissory Note-, incruding the name, address and tereph;.t;;ber of anytrustee or other fiduciary.

6' A physical location (address) oj lhe original promissory note, original securityinstrument, and^all assignments of the seciurity instrument, and a contact nameand phone number of someone who .an arr"nge tor inspectiil of,_.;odocuments.

10' Proof of true sale of the note from alleged Lender to investors, by showing:wire transfer document(s), andlor Signed"purchase and sale agreement(s),Bank statements or similar documentation.

Thank You

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STATE OF NEI,V YORK

COT]NTY OF MONROE SUPREME COURT

WELLS FARGO BANK, NA,

Plainti f f,

versus


Defendant.

rNDEX #2009-0441,9

Oral Argument

Hall of ,JusticeRochester, New york L46I4,-Tune t9, 2013

Carol P. Raes, C.S.R.Senior Court Reporter

B E F O R E:

HONORABLE JOHN J. ARK,

Supreme Court Justice.

A P P E A R A N C E S:

HOGAN LOVELLS, LLPAttorneys for the plaintiffBY: JONATHAN SAMON, ESe., of Counsel

KEVIN PATRICK BRADYDefendantAppearing pro Se

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THE COURT: yes, sir, what's your name?

I4R. SAMON: ,Jonathan Samon wiLh Hogan Lovells,

counsel for PlainLiff We11s Fargo.

THE COURT: T just received your affirmation.

What's your position? Are you Mr. Brady?

MR. BRADY: Yes.

THE COURT: you've made a motion. WhaL reliefare you requesting?

MR. BRADY: That the judgrment actuallydefault judg.ment.s of 2009 and '10 be vacat.ed.

THE COURT: A11 right. f t ' s June 1_9 , 201"3 .

ft's three years later.

MR. BRADY: That's when judgrment.s were issued

or signed.

MR. SAI4ON: your Honor, f 'm not sure it,s a

default judgrment.. your Honor had previously granted an

order of Ref erence and Jud.grment of Foreclosure and sale.

The issue on the order to show cause today rerates toplaintif f 's standing. standing was raised and decid.ed on

the underlying motion. rt was before the Court. in the

2009 order of Reference and the 2010 ,Jud.gnnent ofForeclosure and sale, and it's our position that Lhe

matter is this present matter is barred by res

judicata. Defense has been raised. and d.ecided. Finalityrs requi-red at t.his late date.

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THE COURT:

Notice of Appeal?

MR. BRADY:

THE COURT:

MR. BRADY:

THE COURT:

Appeal was filed?

Mr. Brady, di_d you ever file a

I -- f think so. I'm not sure.

What was the result of that?

I'm not sure.

Do you know whether a Notice of

MR. SAMONi I, too, am not certain. We were

not counsel at the time, so |m not, entirely cerLain. rfit was, it was never perfected. There was no appeal

heard, if a Notice of Appeal was filed.

MR. BRADY: Judge, this is based upon new

evidence anyway.

THE COURT: What's the new evidence?

MR. BRADY: The new evidence is a thirdaffirmation. can r give this to the ,Judge, please? And

he has a copy.

MR. SAMON: I do.

(Document was handed up to the Court. )

MR. BRADY: There was a third affirmation thatwas entered in July of 20LL, and that thaL says thatthey transferred the assignment. we1ls Fargo transferredit to a trust, and they d.idn't, specify a date LhaL thattransfer took p1ace, but in order to be in that Lrust, iLwourd have had to have been before February 1sL, 2005.

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Now, it's my conLention that considering that, a1l of

these Affidavit.s of Assigrnment are--how do r want to say

this?--fraudulent; that there is no history. There isnothing to show that wells Fargo had standing Lhen or

now.

Now, the package t.hat I gave t.o you is the

first assignment and -- r'm sorry, that,'s the second one,

in .Tanuary. I have to correct myself . I,m sorry. I'm

referring to the first assignment that is allegedly made

in 1-998, signed by Talin Gheyvandian as Vice presid.ent of

Fleet Mortgage. Not so.

THE COURT: What's newly discovered about

t.hat ?

MR. BRADY: Wel1, the third one is newly

discovered.

THE COURT: Which is t.he third one?

MR. BRADY: That is dated July 6th, 20LL.

This is where wells Fargo claims that they assigned the

rights. rt doesn't give a d.ate. They just assigned the

rights over t.o the trust, and. what |m trying to say isif that's true, it would have had to have been before

February l-st. of 2005.

THE COURT: What's newly discovered about

this?

MR. BRADY: The assigrnment.

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2011.

ir.

THE COURT: Right.

MR. BRADY: Wel1, it wasn't available until

That's when I found it. That's when they filed

THE COURT: You found it on .Tuly L2th, 2011,?

MR. BRADY: This is when Wells Fargo filed it

at the County Clerk.

THE COURT: Right. It was fited in the County

Clerk' s of f ice on July 1-2, 20LL?

MR. BRADY: Right.

THE COURT: When did you find itr

MR. BRADY: I think about a year later.

THE COURT: So that would have been .Tuly lzth,20L2?

MR. BRADY: Yes .

MR. SAIION: your Honor, if f may respond, withrespect to the earlier assigrnmenLs of the mortgage,

specifically the 1ast, one raised from Fleet Mortgage

corporat.ion, that's just merely a conclusory allegationthat it was not sigrned by the vice president. There isno evidence put in that there's anything f rauclurent withrespect to that assigrnment or the other assignments.

With respect. to anything related to the trustagreements, Mr. Brady has no standj-ng to assert any

vioration of the trust agreements as he's noL a party to

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t.hem or third-party beneficiary.

And to your point, wiLh respect to the

newly-discovered evidence, Lhere is no there has been

no demonstration that if I could quote the exact

language of the statute, "that the motion v/as brought

within a reasonable time and was,, -- excuse me, "and.

could noL, despite due diligence, have been discovered

earlier. " As you know, the assignment was recorded in

July of 201,1,, and here we are in ,June 2012. The Ord.er to

Show --

THE COURT:

MR. SAMON:

Show Cause was brought

prior Lo .fune but sti11

July 20LL recording.

THE COURT:

difference?

20L3.

Excuse me, 2013. The Order to

in April of 20L3, underst.andably

April of 20t3, subsequenL to the

Would that assignment make any

MR. SAMON: We believe no. Standingr was

det.ermined at the time of the action. rt was raised,

considered, determined. There was an assignment of

mortgage t.o welrs Fargo. There was a note endorsed inblank to t.heir f orebearer paper. standing was aL issue

and necessarily determined.

MR. BRADY: There were no issues acLually

det.ermined then. That's why I say it's a defaulL

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Irr-

judgment. because for some reason, this Court just

overlooked everything that f put in my Arrswers. I

challenged standing then on the basis of frauclulent

affidavits and they are, as you can see.

THE COURT: Very we11. What we'11 Co is we'll_

revier,v these documents and notify you of a clecisi-on. I

have your address, Counsel?

MR. SAMON: My address is on our papers. We

did file a Notice of Appearance as well lvith the County

Clerk.

THE COURT: Very well You're r,vith Hogan

Lowells?

MR. SAMON: Correct.

THE COURT: Very we1l. We,ll notify you.

Thank you all for comingr in.

CERTIFTED 'IO BE A TRUE AND ACCURATE TRANSCRIPT

dl (t-- I

CAROL P. RAtrS, C.S.R., Senior Court Reporter

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3476 Strateview Blvd.


vs

Kevin Patrick Brady

John Doe, et al, defendant[sl

COUNry OF MONROE

REBUTTAL TO OPPOSITION

# 4419t0g

Deponent says at the outset, that an Order to Show Cause was seryed on Wells Fargoattorneys on April 23 2013. I received no answer until the very moment this case was calledto the bench on May 31,2013.. Although this last minute Opposition likely presents morecredible to this Court; at least in form, it nevertheless lacks merit.

As shown within, this Court must hesitate before discounting or giving short shrift to thepro se allegations; not simply acquiesce to the assertions of the opposing attorneys. This isprecisely what this Court did when granting wrongful summary judgment to Wells Fargo onDecember 17,2009.

I have absolutely no idea why my Answer to the complaint was summarily dismissed. Thenumber of redactions on the OSJ suggests a decision may have been made only days afterthe return date. This Courts comment'No one heard in opposition'is also baffling and readslike a default judgment.

ln fact it was the Bank who defaulted the action when its attorney of record [Baum] failed toappear 1 on September 3'd. The only appearance made was by attorney John Bellusciowho, upon information and belief, was not a Baum partner or associate but merely'standsin' for cases calendared in Rochester. The record is void of WFB having ratified Belluscioto appear on it's behalf [R 3221,

TCPLR S 321(b) (2). "Until the attorney is removed by court order or by stipulation, his/her status as attorney of

record continues unabated. Moustakas v Bouloukos, 1'12 AD2d 981 (2nd Dept 1g85). "When a question arisesas to whether an anomey is an attorney of record, this issue may not be summarily decided upon conflictingaffidavits, but rather must be determined after a hearing ( ABC Sys. v Temple Emanu-E|,30 A.D.2d 662; Matterof Farrington, 146 App Div 590, 591; cf., Petty v Fietd, 97 A.D.2d 538, 539, appeat dismissed 61 N.y.2d 902;Paulsen v Halpin, 74 A.D.2d 990, 992).

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Although the pro se papers may have presented as amateurish, or inartfully expressed, a

defendant still has the long established right to be meaningfully heard in court, especially on

the possible loss of ones home an property.

SUMMARY JUDGMENT PRECLUDED

The issues then rushed to judgment as a matter of law precluded summary judgment. They

included, but were not limited to

[1] Wells Fargo's lack of standing to bring the action [2] a challenge to its assertion of

owning and possessing the promissory note; [3] challenge to the alleged chain of

assignments [4] failure to substantiate the alleged chain of successors by merger [5]challenge to the alleged consideration paid and delivery of the assignments [6lfailing to

name other judgment creditors/lienholders as defendants [7] WFB refusal to accept catch

payments ostensibly pursuant to the now well known strategy called 'dualtracking'to force

homeowners into foreclosure. [See A ]

It was clearly enunciated on page two [2] of my Answer, 'l reject the complaint for lac* ofstanding ** until standing is established, I challenge this courts jurisdiction to proceed.

Was this the reason why the Answer was treated as 'a limited Notice of Appearance' and

dismissed summarily? ln fact, it was an absolutely meritorious challenge to BOTH standing

and jurisdiction. To wit:

"Standing to sue is critical to the proper functioning of the judicial system. lt is a threshold

issue. lf standing is denied, the pathway to the courthouse is blocked. (Saratoga County

Chamber of Commerce, lnc. v Pataki, 100 NY2d 801 812 [2003],

Professor David Siegel, in NY Practice S 136, at232 [4th ed] instructs

'A want of "standing to sue," is just another way of saying that this particular plaintiff is not

involved in a genuine controversy, and a simple syllogism takes us then to a "jurisdictional"

dismissal: (1) the courts have jurisdiction only over controversies; (2) a plaintiff found to"standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiciion

of the case when such a plaintiff purports to bring it.'

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ln Campaign v Barba (23 AD3d 327 lzd Dept 20051), the Court declared "[tlo establish a

prima facie case in an action to foreclose a mortgage, the plaintiff must establish the

existence of the mortgage and the mortgage note, ownership of the mortgage, and the

defendanfs defuult in payment 2

On or about May 30, 2A10 ; six [6] months after summary judgment, the action was restored

sua sponte, to pre-note of issue status ostensibly to comply with new law mandating

Settlement Conferences . This restoration rendered the summary judgment moot..

The first conference was scheduled for July 8th, but never actually occurred. lt proved only

opportunity for pretender attorney [BelluscioJ to argue for swift execution of the foreclosure

and sale AND to repudiate defendant's collateral motions. I appeared in court for two [2]

conferences but alternatives to foreclosure were never discussed.

RES JUDICATA ? ISSUE PRECLUSION?

Consequently, it cannot credibly be asserted that any issue in this foreclosure is barred by

res judica or collateral estoppel. The defensive issues were never litigated, They were

dismissed. I was not given full and fair opportunity to litigate issues that were necessary to

support a valid and finaljudgment on the merits..

Moreover, there are exceptions to the doctrine based not on the wisdom of a courts decision

but on procedural or jurisdictional issues such as the courts authority or competence to

issue that decision.

LATCHES

lf either party is guilty of latches it is this punitive plaintiff. More than three [3] years aftertheir ill-gotten default ,WFB had not made any attempt to enforce it, ostensibly because the

scandal of robo signed documents and other foreclosure frauds became public. Whether by'suggestion' of federal regulators or on the TBTF's own fruition there came a moratorium on

foreclosures.

2 Witelson v Jamaica Estates Holding Corp. l, 40 AD3d 284 [1st Dept20O4; Household Finance Realty Corp. ol

New York v Wynn, 1 I AD3d 545 l2d Dept 20051; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 l2d Dept2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 lzd Dept 20051; U.S. Bank Trust Nat. Ass'n Trustee v

Butti, '16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 ADzd 49AVdDept2002l; Village

Bank v Wild Oaks, Holding, lnc., 196 AD2d812 [2d Dept 1993]).

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lf deponent's allegations are accepted as true, afforded due process and right to discovery,WFB's third [3'd] alleged assignment actually occurred six [6] years before it was filed atMonroe County clerk. This may also explain why the date of transfer and reference to thenote was conspicuously omitted.

lf the assignment was made contemporaneously with the sale and transfer to the 'Trust' itsuggests fraud on the investors. Quoting judge Arthur Shack in HSBC Bank USA,. v. Taher,

There is no reasonable basis to believe the investors (of the trust) would accept thetransfer of a non-performing loan into a pool in which they supposedly had an interest. Theycannot corect the defect by "assigning'the defective, non-performing loan into a pool ofassets, contrary to the wishes and agreements with the investors. '

Given the time required to comprehend and articulate the massive fraud of securitization,eight [8] month delay in bringing it to this Courts attention is not unreasonable. The issue isnot technicalities, semantics or non prejudicial errors. lt is who actually owns this mortgageand note and has authority to accelerate the contract. The 'sleigh of hand' deceit raisesadditional questions such as 'how deep does this deceit go. How many times do AmericasTBTF Banks expect to be paid on one single foreclosure.?

STEVEN BAUM AND HERMAN JOHN KENNERry

Counsel for WFB may discount the significance of 'robo signing'transfer documents butNew York's Attorney General does not. [see B J

He may discount the significance to all cases brought by foreclosure mill Steven Baum andAssocs. but New York's AG does not. [see C ]

He may discount the credibility and validity of affidavits signed by Herman John Kennertydeposing, inter alia, WFB to be in possession of the mortgage and promissory note, but'watch dogs' for foreclosure fraud do not. Kennerty has been dubbed a prolific robo signerand the man with the most job titles in America. [see D ]

Nevertheless, WFB steamrolls onward to foreclosure and sale of homes and propefiregardless that 'the affidavit upon which the judgments were based was potentially not inthe conect form.' [see E I

Contrary to opposing counsels assertion, Kennerty's admission is probative in this case.

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QUALIFIED WRIfiEN REQUEST

Pro se defendant's QWR was seryed on Wells Fargo on or about March 15, 2013.

Response was received on March 28,2013. The MOST important information requested

was not provided. A subsequent request made to the alleged custodians of the documents

has been completely ignored. See G

Counsels suggestion that [1] I have asserted violation[s] of the'Trust'and [2] that I lack

standing to do so are inaccurate. At this time I am only challenging the paper trail of the

documents mandatory to initiate foreclosure in the first place. 'Where is the mortgage and

promissory note and how long have they been here?

I am not alleging violation of the PSA and/or servicing agreement. I am however suspicious

of the lack of cooperation for providing the information. lf the mortgage and note were

assigned to the Trust as alleged, WFB could not have held title after the closing date;

February 1,2005..

Counsel argues 'there appears to be no dispute that Defendant defaulted on his loan

payment in December 2008.'Counsel didn't read parag 16 and 17 of the pro se Answer.

I have since learned of the 'dual tracking system'employed by TBTF, calling into question

their'good faith'for honoring mortgage contracts. I now have strong reason to believe there

was no default of the contract . I may in fact have been overpaid for years.

Counsel argues 'defendant does not assert being subject to conflicting claims'. No and I

don't want to be either. But this is not the issue. The law in New York is established..

"a plaintiff lacks standing where there is no proof that both the mortgage and the note have

been assigned to plaintiff. HSBC Bank USA v. Mi/ler26, Misc.3d 407 (NY Sup Ct, Sullivan

County 2009). "Proof of mortgage assignment alone is not sufficient to constitute standing in

a foreclosure suit"

"[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff mustestablish the existence of the mortgage and the mortgage note, ownership of the mortgage,

and the defendant's default in payment'3

3 [Emphasis added]." (See Witelson v Jamaica Estates Holding Corp. l, 40 AD3d 284 [1st Dept 2007];

Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545l2d Dept 20051; Sears Mortgage Corp. v

Yahhobi, 19 AD3d 40212d Dept 20051; Ocwen Federal Bank FSB v Miller, 18 AD3d 527lzd Dept 20051; U.S.

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The prerequisites in this case were NOT established by the incredible affidavits of HermanJohn Kennerty. This defendants Answer demanded 'Show me the Note'. lnstead l wassummarily dismissed.

Yoreclosure of a mortgage may not be brought by one who has no title to it and absenttransfer of the debt, the assignment of the mortgage is a nullity." a

I submit that if my pro se challenges had not been dismissed but adjudicated as required bylaw, this case would have concluded much differently. As a matter of law I would haveprevailed.. lnstead the case never proceeded to discovery or trial. The validity of WFB'evidence'was taken at face value.

Although Notice of Appealwas filed on September 10, 2010, the OSJ was never entered atMonroe County court. The record on appeal has thus remained defective.

lnsofar as the OSJ reads like a default judgment, to wit. 'No one heard in opposition' andthat no appeal lies from an order entered on default.s and because here no order was evenentered, an appealwould certainly have been dismissed.

lnsofar as [Bauml obtained the default judgment by misrepresenting the prerequisites forforeclosure, the CPLR and the courts inherent authority to vacate it's own judgment, that iswhat this Court must do so.

'When court officer [Baum] is found to have fraudulently presented facts so that the court isimpaired in it's impartial performance the act, known as "fraud upon the @urt", is a crimedeemed so fundamentally opposed to the operation of justice that it is not subject to anystatute of limitation.

"Fraud upon the court" has been defined to "embrace that species of fraud which does, orattempts to defile the court itself, or is a fraud perpetrated by officers of the court so that thejudicial machinery can not perform its impartial task of adjudging cases that are presentedfor adjudication".

Bank Trust Nat. Ass'n Trustee v Butti, 16 AD3d 408 tzd Dept 20051; First Union Mortgage Corp. v Fern, 29gAD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, lnc., 196 ADzd812 [2d Dept 19931).

n Kluge v Fugazy 145 AD2d 537, 538 [2d Depar. 1988]t CPLR 551 1; Putrino-Weiser v. Sharf, 272 AD2d 894; Matter of ozotins [appeat No. 2], 65 AD2d g5g).

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SUMMARY

Wells Fargo Bank NA has failed to raise credible and/or cognizable defense to the Motionto Vacate. This Court should sign the Proposed Order for entry.

I hereby depose that everything contained herein is correct and truthful to the best of my knowledge

except for matters alleged on information and belief, and I believe those matters to be true. Nothing is

intended to be 'frivolous, vexatious or completely without merit'.

KEVIN PATRICK BRADY

508 Locust Lane


585 381 2063

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?jiii til0 -,J pil tr: ggWells Fargo Bank, NA

3476State view Blvd. :: ir; ,.:- i,i,;Ljli iy {jlriihFt. Mill, SC 29715, plaintiff

vs # 441gt0g

REBUTTAL TO WFBKevin Patrick Brady


On or about July 19,2013 Wells Fargo Bank IWFBI filed Opposition to DefendantsMotion to Vacate, Recuse and Consolidate. lt opposition is completely without merit. Asa matter of law this Court has no discretion but to VACATE all orders issued in theabove referenced action.

The Opposition fails to acknowledge the controlling principle of law that renders theaction jurisdictionally void. Deponent is not mistaken about this. lt has been enunciatedclearly and consistently in defendants every affidavit. Just as clearly and consistently ithas been ignored by this Court and putative plaintiff

Plaintiffs counsel asserts 'there appears to be no dispute that defendant has been indefault., etc. etc.'Counsel is categorically mistaken. The controversy as to WHO anysuch default would be owed to has never been determined.

This Court did, as a matter of law. improperly denv Defendants Order to Show CauseThis Court has rendered Defendants right to be heard mere exercises in futility.

Defendant denies every allegation in putative plaintiffs Opposition, and reiterates;

' Wells Fargo Bank has NEVER shown any proof whatsoever that it owned thesubject note and mortgage at the time it initiated foreclosure.

o Defendant DID expressly raise standing in April 15, 2009 answer to the complaint.The burden of proof has ALWAYS been on WFB: the pretender lender. Theannexed affidavits of Herman John Kennerty and Barret Herndon attest to WFB'sfailure to meet the mandatory pleading requirements.

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THERE IS NO LAW OF THIS CASE

ln Wright v. Rite Aid of NY, lnc., 288 A.D.2d 834,732 N.Y.S .2d 498 ( 11t09t2001) theAPPELLATE DlvlSlON, FOURTH DEPARTMENT said:

The court erred in [denying defendants motion] based on " law of the case. Thatdoctrine applies to issues *essential'to the prior determination (Papa Gino's of Am. vPlaza at Latham Assocs., 144 AD2d 172; Gould v lnternational Paper Co., 223 ADzd964, 965-966, Camperlino & Fatti Bldrs. v Dimovich Constr. Corp., 175 AD2d 595, ANDcontemplates that parties had a *'full and fai/* opportunity to litigate those issues(People v Evans, 94 NY2d 499, 502, rearg denied gO NY2d 755).

Here, the doctrine of law of the case does not apply because [pro se defendant] had noopportunity to litigate his [challenge]

OTHER OBJECTIONS

This Court has scheduled defendants Motion to December 2013. That is unacceptable.This Court has ignored its lack of subject matter jurisdiction far too long.

Any remaining questions as to the merits of defendants jurisdictional challenge arereferred to the'on point'findings in Wells Fargo Bank, N.A. v Erobobo (2013 Ny Slip Op5067s(u))

This Court has ignored defendants Motion for prospective relief [Stay of EnforcementJThis Court has ignored defendants request for subpoena of the pertinent documents.

For allthese reasons RECUSAL is MANDATORY.

hereby depose that everything contained herein is correct and truthful to the best of my knowledge exceptfor mafters alleged on information and belief. and I believe those matters to be true. Nothing is intended tobe 'frivolous, vexatious or completely without merit'.

, KEVIN PATRICK BRADY508 Locust Lane


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STATE OF NEW YORKSUPREME COURT: COLINTY OF MONROE

------------xWELLS FARGO BANK, N.A.3476 Stateview BoulevardFt. Mill, sc29715

Plaintiff,

vs,


JOHN DOE (Said name being fictitious,it being the intention of Plaintiff todesignate any and all occupants ofpremises being foreclosed herein, andany parties, corporations or entities,if any, having or claiming an interestor lien upon the mortgaged premises.)

Defendant(s).------------x

STATE OF South Carolina )COLINTY or

-vork

) ,s'

AFFIDAVIT

INDEX NO.: 4419/09

Mortgaged Premises:508 LOCUST LANEEAST ROCHESTER, NY 14445

SBL #:15t.27-t-39

Herman John Kennerty_, being duly sworn, deposes and says:

L That he is a _Vice President Loan Documentation_ of WELLS FARGO

BANK, N.A., the Plaintiff in the above-referenced action, and is fully familiar with the facts and

circumstances of this present foreclosure action.

2. That your deponent has read the Answer submitted by the Defendant, KEVIN

PATRICK BRADY, Pro Se, in the above-referenced action. A copy of said Answer is attached

hereto.

3. Defendant denies knowledge or information sufficient to form u U.fijf u, Stn.fR

allegations contained in Paragraph "FIRST" of the Complaint. This denial is immalerial Sr the

purposes of this motion, and a copy of the Complaint is attached hereto. i. =(*-f,

4. Defendant admits the allegations contained in Paragraphs "SECOND{*a EfmO"i

r'rrlF>tia/

i:j.ji::.:ili::s,3;ai

this action.

5. Defendant denies the allegations contained in Paragraph "FOURTH" of the

Complaint. This denial is immaterial for the purposes of this motion. Attached to the Complaint as

Schedule 'A' is a copy of the legal description for the property being foreclosed herein.

6. Defendant denies the allegations contained in Paragraphs "FIFTH", "SIXTH" and

"SEVENTH" of the Complaint. These denials are spurious. I have checked the records kept in the

regular course of business by this institution, and confirm that the amount stated in the Complaint to

be due and owing to the Plaintiff is in fact correct; there is due and owing an unpaid principal

balance of $61,089.55, plus interest at the rate of 5.125% from October 1,2008, plus late charges,

escrow advances in the amount of $25.17, inspection fees and retumed check fees, together with

monies advanced for taxes, insurance and maintenance of the premises, costs, disbursements, and

reasonable attorney's fees, as permitted by the loan documents. To date, this institution has not

received any further payments, nor has the Defendant submitted proof to dispute the amount due

and owing. Further, Plaintiff has the right to advance property taxes and homeowner's insurance to

the extent that the same remain unpaid, and/or any other charges in order to protect its mortgage

security interest.

7. Defendant denies the allegations contained in Paragraph "EIGHTH" of the

Complaint' This denial is immaterial. Paragraph "EIGFITH" of the Complaint references other

party defendants whose liens have accrued subsequent to the lien of Plaintiffs mortgage, and has no

bearing on any defenses or claims the Defendant may have against the Plaintiff in this action.

8. Defendant denies the allegations contained in Paragraph "NINTH" of the Complaint.

Paragraph "NINTH" contains the applicable language used when the United States of America, the

State of New York or a municipality is named as a defendant in a foreclosure action. A denial as to

4.iF@&

sFsa-lF+cn$tarryArronffif iiirmaterial fo. tt " purtrtoses of tfti" motion'

g. Defendant denies the allegations contained in Paragraph "TENTH" of the Complaint.

This denial is immaterial. Paragraph "TENTH" of the Complaint sets forth the capacities of the

defendants, which has not been proven to be inaccurate'

10. Defendant denies the allegations contained in Paragraph "ELEVENTH" of the

Complaint. plaintiff has demonstrated the existence of the Note and Mortgage being foreclosed

herein, bearing the signature of the Defendant, as well as a copy of the required notices pursuant to

statute. If Defendant wishes to challenge the documentary evidence proffered by the Plaintiff, then

Defendant must do so by submission of material evidence noting its dehciency with specificity.

1 l. Defendant denies the allegations contained in Paragraph "TWELFTH" of the

Complaint. This denial is immaterial for the purposes of this motion and has no bearing on any

defenses or claims the Defendant may have against the Plaintiff in this foreclosure action. Further,

the Referee in this foreclosure action, as appointed by this Court, may determine whether or not the

premises to be foreclosed herein may be sold in parcels.

12. Defendant denies the allegations contained in Paragraph "THIRTEENTH" of the

Complaint. The allegations contained in Paragraph "THIRTEENTH" with respect to other actions

pending are nothing more than a formal requirement of $ 1301 of the RPAPL.

13. The Defendant has either admitted to or generally denied all of the allegations

contained in the Complaint, and has raised no triable issue of fact regarding any of the allegations.

In an action to foreclose a Mortgage, a prima facie entitlement to summary judgment is established

by submitting proof of the existence of the Note and Mortgage and the Defendant's default in

payment. The burden now shifts to the Defendant to come forward with evidence showing the

existenceof atriablefact. See,Bercylnvestors. Inc. v. Sun,239 A.D.2d 161,657 N'Y.S.2d'17(lst

Dept. 1997); Federal Home Loan Mortsage Corporation v. Karastathis, 237 A.D.2d 558, 655

Complaint, the Defendant has raised no triable issue of fact'

14. As and for a First Affirmative Defense, the Defendant alleges that the Plaintiff lacks

capacity and/or standing against the Defendant. This defense is spurious. The Defendant executed a

Mortgage contract with Fleet Real Estate Funding Corp. The mortgage was subsequently ass-igned

to Bank United by assignment dated July 13, 1998. Effective February 13, 2001, Bank United

merged with and into Washington Mutual Bank, FA. Washington Mutual Bank F/I?A Washinglon

Mutual Bank, FA assigned the mortgage to Wells Fargo Bank, N.A. by assignment dated January

18,2007. Upon the execution of said Assignment, the Plaintiff obtained all right, title and interest

in the Note and Mortgage and as such, has the right to accelerate the debt and commence this

action. This Court and the Defendant are respectfully refened to the Assignments of Mortgage and

Certificate of Merger, attached hereto. As the record holder of the Mortgage, the Plaintiff does have

legal capacity to sue the Defendant and thus, this defense fails as a matter of law.

15. As and for a Second Affirmative Defense, the Defendant alleges that he has tried to

make payments and would like to have his loan reinstated. This defense is without merit. The

Defendant fails to specifically state that payment tendered was sufftcient to reinstate the Mortgage and

has further failed to submit any evidence of said payments. Upon the Plaintiff s acceleration of the

loan, the Defendant has the option of reinstating the Mortgage by paying all arrears due and owing,

including all applicable fees and costs, as provided by the Mortgage instrument. Even if lefendant

had made a payment to the Plaintiff, it is well settled that a mortgagee is not required to accept an

insufficient tender of payment of arrears and may reject partial payment of arrears. United Cos.

Lending Corp. v. Hingos,283 A.D.2d764,724 N.Y.S.2d 134 (3'd Dept. 2001); see also, Bankers Trust

Co. v. IIoovis,263 A.D.2.am1,694 N.Y.S.2d215 (3'd Dept. lggg). Therefore, the Plaintiff may elect

due.

16. Furthermore, even if the Defendant is interested in working u'ith the Plaintifl to seek a

forbearance, reinstatement and/or workout agreement with the Plaintiff, no such agreement has been

approved as of the date of this Summary Judgment motion. Further, there is no guarantee that the

Defendant will qualifu for a workout agreement or that the Defendant will, in fact, submit sufficient

funds in order to reinstate the Note and Mortgage. As it currently stands, there is a written Note,

secured by a Mortgage wherein the Defendant agreed to make certain monthly payments to the

Plaintiff. The Defendant failed to make the required payments and as such, the Plaintiff is entitled to

accelerate the debt and seek a Judgment of Foreclosure. See, RPAPL $1301; Bercy Investors. [nc. v.

Stxr, supra; Federal Home Loan Mortgaee Corp. v. Karastathis, supra; Greater Nqw York Sav. Bank v.

2120 Realtv. Inc., 202 A.D. 2d 248, 608 N.Y.S. 2d 463 (1't Dept. 1994). Notwithstanding the

foregoing, the granting of the Summary Judgment application by the Plaintiff does not in any way

eliminate the possibility that, in the future, the Defendant may reinstate the loan or enter into a

workout/forbearance agreement. As such, this defense must fail.

17. With respect to the Answering Defendant's Cross-Claims, it is respectfully submitted

that the Answering Defendant's claims should not be a basis for denying Plaintiffs application for

Summary Judgment. In fact, the Answering Defendant's Cross-Claims would prove overly

burdensome to the Plaintiff should they be allowed to survive and, as such, they should be severed

or order separately tried. It is respectfully submitted that there is a Note, secured by a Mortgage,

wherein the Mortgagor, Kevin Patrick Brady, signed said documents. Further, it is undisputed that

the Mortgagor has defaulted under the terms of the Mortgage.

18. The Answering Defendant's Cross-Claims have no effect on the foreclosure action

herein. Further, the Cross-Claims rvould be unnecessarily burdensome to the Plaintiff if they were

sever4ce should be allowed where it enables the foreclosure action to be disposed of more quickly.

Marine Midland Bank v. Berley, 90 A,D.2 d 646,456 N.Y.S .2d 270 (3'd Dept. 1982). However, if

Plaintiff were to be required to await the decision of this Court on Answering Defendant's Cross-

Claims, Plaintiff s foreclosure action would be unnecessarily delayed. The Plaintiff should not be

required to await the outcome of a trial before recovering the Mortgage debt. Spano v. Perry, 59

Misc.2d 1062,301N.Y.S.2d 836 (Sup. Ct. Tompkins Cty. 1969).

19. Based upon the foregoing, it is respectfully submitted that the Cross-Claims of the

Answering Defendant be severed or ordered separately tried pursuant to CPLR $603.

20. The Defendant also requests a change of venue due to the fact that he believes he

cannot have an impartial trial in Monroe County. First and foremost, the Mortgage Agreement

executed by the Defendant on May 16, 1994 clearly states that the Mortgaged Premises is located in

Monroe County in the State of New York. The Defendant acknowledged this when he executed the

Mortgage Agreement on May 16, 1994. Based upon the foregoing, it is respectfully submitted that

the Plaintiff has designated the proper county for the venue of this action. The Mortgaged Premises

is located in Monroe County and, as such, the proper venue is Monroe County. The Defendant has

not offered substantiation for his claim that Monroe County would not a fair venue. Based upon the

foregoing, and pursuant to the CPLR, the Supreme Court of Monroe County is the proper venue for

this action. As such, the Defendant has failed to create any triable issue of fact and the relief he has

requested is without any authority whatsoever.

WHEREFORE, deponent respectfully requests that the Court dismiss the Answer of the

Defendant KEVIN PATRICK BRADY, Pro Se, and that Summary Judgment and Order of

Reference be granted in favor of Plaintiff, and for permission to treat said Answer as a limited

Notice of Appearance, entitling said Defendant to receive, without prior notice, a copy of the Notice

i?';;t::-;ii.* iitat :'rob Po€

iiopp"o * apartydefendant in this action as no tenants reside at the premises' and,that the caption

of this action be amended to reflect the deliion of "John Doe" as a party defendant, that the address

of the plaintiff be deleted from the caption and that the caption be amended to reflect the deletion

and for an Order appointing a Referee to determine the amount due to the Plaintiff, and to determine

whether the premises being foreclosed can be sold in parcels, and that all non-appearing and non-

answering defendants be deemed in default, and said defaults be fixed and determined, and for such

other and further relief as this Court may deem just and proper.

Name:Title:Documentation-

WELLS FARGO BANK, N.A.

On the _12-day of _June_ in the year _2009- before me, the undersigned,

p".ronully upp.*ra ___ft.r-an John Kennerty- the subscribing witness to the foregoing

instrument, *ith *ho- I u* personally acquainted, who, being by me duly sworn, did depose and

say that he/she resides in _Fort Mill_ (if the place of residence is in a city, include the

stieet and street number, if any, thereof); that he/she knows

-Herman John Kennerty- to be

the individual described in and who executed the foregoing instrument; that said subscribing

witness was present and saw said _Herman John Kennerty- execute the same; and that

said witness at the time subscribed hisftrer name as a witness thereto.

trnES,#,'=,; b.lPtst-

t

John Kennertyice President Loan

Swom to before me

STATE OFCOTINTY OF

ffi

of individual taking proof.) fr LE-lljFCoro{mo. 10"*

YS.: :, , .

KEVIN PATRICK BRADY, ET AL.,

Defendant(s).

.-----------x

INDEX NO.: 4419109

MORTGAGED PREMISES:508 LOCUST LANEEAST ROCHESTER, NY 14445

SBL #:Lst.27-t-39

STATE OF SOUTH CAROLINACOTINTY OF YORKCITY OF FORT MILL

Plaintiff has advanced:s25.t7s0.00$0.00s0.00

Plaintiff is due:s0.00s0.00

): SS.:

)

2.

aJ.

Barrett Herndon_, being duly sworn, deposes and says:

l. That deponent is the Vice President Loan Documentation of WELLS FARGO BANK, N.A.

Your deponent has reviewed the books and records of the Plaintiff, as well as the Complaint herein.Based upon personal knowledge, I hereby attest to and verifr the truth of the matters asserted in theComplaint.

Upon review of the books and records kept in the regular course of business by this institution, I confirmthat there is in fact a default under the terms of conditions of the loan documerits. The last payment madewas applied to the monthly payment due the lst day of October,2008. As such, the loan is now due formonthly payments commencing with the payment due on the lst day of November, 200g. Because of saiddefault, Plaintiff elected to accelerate the loan. As set forth in the Compla int, at the time ofcommencement there was due and owing the principal balance of $61,089.55, plus 5.125% interest fromthe 1st day of october, 2008, together *ith, As of tire signing of this effidavit'of Ment, there have beenno changes to the adjustable rate note.

4.

for taxes and./or insurance;for property inspections;for maintenance of premises;for brokers price opinion.

for late charges;for non-sufficient funds charged.

'I'his action was brought to foreclose a mortgage executed by KEVIN PATzucK BRADY dated the 16thday of May, 1994, and recorded in the office of the Clerk of th. County of Monroe on the lTth day ofMay,1994 at Liber 12219 of Mortgages at Page 538 in the originalprincipal amount of $g6,900.00. Themortgaged premises is located at 508 LocusT LANE, EAST nocHesr-gR, Ny 14445. Said mortgagewas duly assigned by assignment dated the l3th clay of July, 1998, and recorded on the 6th di ;fOctober, 1998, in the Office of the Clerk of Monroe County at iiber 1257 , page 99; which mortgage wasfurther assigned by assrgnment dated the 18th day cf January, 20A7, andricorded on the 9th day ofFebruary, 2007, in the office of the clerk of Monroe county at Liber 1561, page 336;

5. Deponent has reviewed the original notethe regurar .o*,"-or p":i;.;;?;ffi;:,ffilff*di;l;*fllj!:k i'".Hffr:,1fmortsage,

kepl inexecuted and notarized where uppri"uur", and mortgagstax due paid thereon ptop"i ro*, iuiv

"o'1?lKli.'l#ffii::::TJ:Hl::i'ilf;::*:*:X,T,:,.#"it* ," accordance wirh the provisions

In addition to the sums set forth in the complaint, plaintiff may advance, in order to protect its security

t|i::Tiii:"fi.fffiT,'T*j'"?Hti**t#;:ilT and mainiena"." "iin; p,"-i,".,,uti.,i

and substantiated Ly appropriate.uid"nr".ttqants detault' said amounts will be provided to the Referee

As of the date of this. affidavit, the following has occurred:

f,l,i:ff,x:1 :f,l} nlftr,1g##f *1.dil',:Tl',i, :"ffi*i the, st day o r Apri,, 2 00e, and

Your deponent resPectfulll submlf that, should the status of any of the Defendants change between thettme that this Affidavit is executea ano irre time of pr"i"urr.lpprication

to court, .uid.hung.s wiil bereflected in Plaintiffs etto-ry, airil'u;;"

"ii;"r&fi;-t w'r be executed at atater date.

ffLff::*iJ:'#::ilf #fl}ffi.ilX1ff;.',ffXJ:fffl and has determined that rhe morrgaged

6.

7.

8.

9.

--- SPACE INTENTIONALLY LEFT BLANK.--

10. Deponent makes this affidavit knowing that the Referee in this matter and the Court appointing the samerr'ill rely on the fruth and veracity of the statements contained herein.

WELLS FARGO BANK, N.A.

By: Barrett HemdonTitle: Vice President Loan Do..rr*ntution

_April ,2009

ICIAL SEALNotarv Public

State of Sduth CarolinaCARMEN Y PICKETT

Commission Exptr66 Jan. 14, 2018

TO BE COMPLETED, rN ADDITION TO JITRAT (ABOVE), IF EXECUTTNG OUTSTDE OF NEWYORK STATE

STATE OF South Carolina )County of York_)

On the 29-day of

-April-, in the year of 2009_ before me, the undersigned, personally

appeared Barrett Hemdon the subscribing witness to the foregoing inskument, with whom I ampersonally acquainted, who, being by me duly sworn, did depose and say that helshe resides in FortMill- (if the place of residence is in a city, include the street and street number, if any, thereoflf that he/she

vs Barrett Hemdon- to be the individual described in and who executed the foregoing instrument;said subscriblng witness was present and saw said Barrett Herndon execute the same; and thatwitness at name as a witness thereto.

ignature and office of individual taking proof.)

CaseGen: 146028

Notary Public

-Stqte of Srjuth CarolinaCAHMEN Y PICKETT

-C9ry qis-si grr Expirei Jinl a,

SUPREME COURTSTATE OF NEW YORK COLINTY OF MONROE

WELLS FARGO BANK, N.A.3476 Stateview BoulevardFT. Mill, sc297t5,

Plaintiff, DECISION AND ORDER

Index No. 2009/4419KEVIN PATRICK BRADY,

Defendant.

APPEARANCES:

Pro Se Defendant, Kevin p. Brady

For Plaintiff:Hogan Lovells US LLP(Jonathan E. Samon,Esq., of counsel)

Pro Se plaintiff, Kevin P. Brady, by Order to Show Cause signed by the Court on April 4,

2013, seeks vacatur of "Orders of Foreclosure," based on alleged "want ofjurisdiction.,, The

matter was argued at Special Term on June 19,2013.

The referenced "Orders of Foreclosure" comprise an "Order" appointing a referee (ctated

December 17,2009) and a "Judgment of F'oreclosure and Sale" (dated August 12,2010).

Before issuance of the subject Order and Judgment of Foreclosure and Sale, defendant

alleged and argued lack of plaintiff s standing to bring action against him. The issue of standing

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

The Court clearly has subject matter jurisdiction over the instant foreclosure action. In

personamjurisdiction over defendant has been conclusively established. Defendant's

jurisdictional arguments have no merit, and are rejected by the court.

DECISION

Accordingly, it is the Decision of the Court that defendant's Order to Show Cause,

seeking vacatur of the Order appointing a referee and the subsequent Judgment of Foreclosure

and Sale, be, and it is hereby, DISMISSED, with prejudice.

This Decision shall constitute the Order of the Court.

Dated:

)^ 21 , Lo,7

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vs

Kevin Patrick Brady


COUNTY OF MONROE

NOTICE OF APPEAL

# 4419t09

:F 11qcl=

3.t'.cir, (r-)

BE ADVISED that that Notice of Appeal has been entered in Monroe Countf of tnbannexed Decision abd Order : 3

:;t rt)

On August?,2013 defendant mailed a

to the following parties.


875 Third AveNew York, New York 1OO22

Kevin Patrick Brady,

!

true and complete copy of the encloJEd afravi

508 Locust Lane


I depose under penalty of law that everything contained herein is corect and truthful to the best of myknowledge, except for matters alleged on information and belief and I believe those matters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

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COUNTY OF MONROE

vs

Kevin Patrick Brady

John Doe, et al, defendant[sl

NOTICE OF APPEAL

# 4419tO9

BE ADVISED THAT on the following defects, defendant appeals to the AppellateDivision in the Fourth Department, the Decision and Order of JUDGE JOHN J ARKentered at Monroe County Clerk on June 29,2013 and served on defendant on or aboutJuly 12th

1. Contrary to assertion, there was no ruling in the main action as to the issue ofstanding decided against defendant out of necessity. Defendant's pleadings weredismissed in their entirety. The court said 'no one heard in opposition.

2. Defendants pleadings had clearly challenged plaintiffs assertions to owning andholding the subject mortgage and promissory note

3. Plaintiff has never been required to show any proof whatsoever of owning andlorholding the subject mortgage and promissory note.

4- Defendant was never given opportunity to be meaningfully heard rendering theinitial Decision and Order VOID and deprives the court of jurisdiction.

5. The instant decision fails to render findings on defendant's assertion of NEWEVIDENCE showing ptaintiffs FRAUD ON THE COURT.

'rfuknrlPkKevin Patrick Brady

508 Locust Lane


I depose under penalty of law that everything contained herein is correct and truthful to the best of myknowledge, except for mafters alleged on information and belief and I believe those matters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

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vs

Kevin Patrick Brady


NOTICE OF VOID JUDGMENTS

# M19tO9

Upon the annexed affidavit of pro se defendant, a supplemental notice and affidavit ofvoid judgments was filed in the Court and with Monroe Country clerk on October Z(ZOI

I

on october 2,2013, I mailed a true and complete copy of the enclosed affidavit to theparty identified below.

JONATHAN E. SAMON

Hogan Lovell US LLP

875 Third Ave

NewYork, NewYork 1OO22I

Kevin Patrick Brady

508 Locust Lane


I depose under penalty of law that everything contained herein is correct and truthful to the best of myknowledge, except for matters alleged on information and belief and I believe those mafters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

2013 OCI 30 Ait 9: 5tli,.rrriif i,iii;lii . r.1 [i,F

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Wells Fargo Bank, NA3/-76 Stateview Blvd.Ft. Mill, SC 29715, plaintifi

COUNTY OF MONROE

vs

Kevin Patrick BradyJohn Doe, et al, defendant[sl

SUPPLEMENTALNOTICE OF VOID JUDGMENTS

# 4419t09

Upon the electronic records of New York's Unified Court System [see AJ I herebychallenge this Courts credibility and ability to have given due consideration todefendants motion to 'Show Cause'on the same day it was returnable. July 19, 2013.

This Courts order claims that'[tJhe issue of sanding uras of necessity decided againstdefendant and constitutes the Law of this Case'. This is completely unsupported byanything in the record.

For purposes of appeal Ia_bove ruling.

Putative plaintiffs lack of standing in this case has REPEATEDLy been raised,an&proven since this action was filed in 200g.

'..: to-i cn

lmmediate summary dismissal with prejudice for defendant is NOT discretionary.

Wegp,k

ajc)

/ \_'

Kevin Patrick Brady

508 Locust LaneEast Rochester 14445

I depose under penalty of law that everything contained herein is correct and truthful to the best of myknowledge, except for matters alleged on information and belief and I believe those rnatters to be true.Nothing is intended to be frivolous, harassing or completely without merit.

fY

i

I

$rliCivil Suprenre - Appearant'c Drtail https:/ / iapps.t ourts.statt'. rrv.us/ n'r' bt ivi l/ FCASCast' ln fo?p...

i.:li . ti .: ! fr,' il l J.i ii' j ;r i'i<.,1 -,{,i' 1 ;i ! ;:1r ; i j" i ;r

Court:Index Number:Case Name:Case Type:Track:

Monroe Civil Supremeoo44t9l2oo9WELLS FARGO BANK NA vs. KEVIN PATRICK BRADYForeclosure Conf IneligibleStandard

Appea rance Inf_o rmation IAppearance:

!

Date lTime ion For12/18/2013 i lMotic,ni1'''',''07 /76/2013 i iMotion

iMotbn

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AppearanceOgtcoln€Return/Submit

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Moton DeciJed ' '

rJustice /rPart,noN. ionru t nnxiARK (Motbn Part)iHON. ]OHN J. ARK

ARK ll:!9!bn Part)iHON. ]OHN ]. ARK.ARK (l.totbn-Part)_iHOII. JOHN ]. ARK

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iHoN. loHN l. ARK

"ARK (Cqlrt Activty)iHON. IOHN J. ARK

:ABK (I,!ctQn P?rt) . ,

iHON. ]OHN J. ARKARK (Court Actiy(y):HOt{. JOHN t. ARKARK (Motbn Part)iHON. ]OHN ]. ARKARK (Motbn Part)iHON. ]OHN ]. ARK

,ARK.(Pr9!in1 Conference).HON. JOHN ]. ARKARK (Prelm. Conference)HON. ]OHN ]. ARKARK (Court Activity):HON. ]OHN ]. ARK

*ARK (Motron Part).HON. ]OHN ]. ARKARK (Motron Part)IHON. ]OHN ]. ARK

.ARK (Motbn Part)HON, JOHN ]. ARKARK (Court Activity)]HON. JOHN J. ARKj48( (sgtt le-ng!:t c,o tf-Q rg !c,e)rHON. IOHN l. ARK.ARK (Mott]n Part):HON. ]OHN ]. ARK.ARK (Motbn Part)

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O8/12/2OLO I :Disposed Pre-Note Post Judgement Restoratbn.. i.

a8/L2/2OlO I iMotbn Motbn Deciled

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o8/12/2OlO i Ito,on 'Return/Submit,t

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brelminary Confererre

07/O8/2O|O 10:00 AM rPrelinirnry PreliT inary Conference

A7 /05/2OlO i rRestored Pre-Note Of lssue Restoration

06/30/20LA I Motbn Motbn Filed

10101/2009 t rMotbn Motbn Decued

|O/01/2OO9 I tMotbn iReturn/Submit

IO/07/2OO9 I Disposed .Pre-Reserved Decisbn

09122/2009 I lSettbment Conference Settbment Conference

O9/0.3r2O09 , Motbn Adjourned

07 124/2009 i Motion Motbn Filedl

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Io[I t0/23/2013 7:57 P1\l

Judge John Ark Mortgage Fraud

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Transcript of Judge John Ark Mortgage Fraud