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JUDGE SPINNER SLAPS US BANK FOR ACTING IN BAD FAITH - U.S. BANK v MATHON

JUDGE SPINNER SLAPS US BANK FOR ACTING IN BAD FAITH - U.S. BANK v MATHON

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Published by 83jjmack
U.S. BANK FRAUDULENTLY PRESENTING THEMSELVES AS THE CREDITOR---NO INTENTION OF SETTLING OR MODIFYING.

Judge SPINNER: “…while Defendants were assiduously attempting to re-negotiate a modification, plaintiff was instructing its counsel to continue prosecution of the foreclosure action. It is painfully obvious to this Court that Defendant relied upon representations made by Plaintiff and acted affirmatively based upon those representations, all to their serious detriment. ….’A Party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression…’ 124 NY at 179″
U.S. BANK FRAUDULENTLY PRESENTING THEMSELVES AS THE CREDITOR---NO INTENTION OF SETTLING OR MODIFYING.

Judge SPINNER: “…while Defendants were assiduously attempting to re-negotiate a modification, plaintiff was instructing its counsel to continue prosecution of the foreclosure action. It is painfully obvious to this Court that Defendant relied upon representations made by Plaintiff and acted affirmatively based upon those representations, all to their serious detriment. ….’A Party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression…’ 124 NY at 179″

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Published by: 83jjmack on Dec 06, 2010
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U.S. Bank Natl. Assn. v Mathon
 2010 NY Slip Op 52082(U)Decided on December 1, 2010Supreme Court, Suffolk CountySpinner, J.This opinion is uncorrected and will not be published in the printed OfficialReports.Decided on December 1, 2010
Supreme Court, Suffolk County
 
U.S. Bank National Association, Plaintiff againstSheila Mathon, Hank Mathon, Mortgage Electronic Registration Systems Inc.as Nominee and Mortgagee of Record, WMC Mortgage Corp., the LawOffices of Joseph D'Elia, Key Bank of Long Island n/k/a Washington MutualBank, Commissioner of Taxation and Finance, United States of America-Internal Revenue Service and Shore Park Estates Homeowners AssociationInc., Defendants
2007-30481
 
 Adam M. Marshall Esq.Cullen &Dykman LLPAttorneys for Plaintiff 100 Quentin Roosevelt BoulevardGarden City, New York 11530Rosicki, Rosicki& Associates P.C.Former Attorneys for Plaintiff 51 East Bethpage RoadPlainview, New York 11803Sheila MathonHank MathonDefendants Pro Se815 Anthony DriveLindenhurst, New York 11757Jeffrey Arlen Spinner, J.
ORDER ON MOTION 
 Mot. Seq. 004-MotDOriginal Return Date: September 15, 2010Final Submit Date: November 17, 2010
Premises
 
 
815 Anthony DriveLindenhurst, New York 11757District0103Section025.00Block02.00Lot049.008This is an action wherein the Plaintiff claims foreclosure of a mortgage dated September 28, 2006 in theoriginal principal amount of $486,400.00 recorded with the Clerk of Suffolk County, New York onOctober 16, 2006 in Liber 21401 of Mortgages at Page 349. The mortgage secures a note of the sameamount and encumbers real property commonly known as 815 Anthony Drive, Lindenhurst, Town of Babylon, New York and described as District 0103 Section 025.00 Block 02.00 Lot 049.008 on the TaxMap of Suffolk County. Plaintiff commenced this action by filing a Summons, Verified Complaint andNotice of Pendency on September 26, 2007. Following the interposition of an Answer by Defendantsthen-counsel, summary judgment was granted by Order dated April 14, 2008 and a Referee wasappointed to compute in accordance with RPAPL § 1321. Thereafter, by Order dated January 30, 2009, aSubstitute Referee was appointed. On July 12, 2010, Plaintiff moved for a Judgment of Foreclosure &Sale and, following the interposition of opposition by Defendants together with the present Order ToShow Cause, the application was voluntarily withdrawn.Defendants SHEILA MATHON and HANK MATHON ("The Mathons") have moved
 p
ro se
, by Order ToShow Cause dated August 12, 2010, for a stay of all proceedings under this index number. Theirapplication recites a number of grounds for the relief demanded including the pendency of a lawsuit inthe United States District Court for the Eastern District of New York brought by the Mathons as plaintiffsunder docket no. 10-CV-3664, the failure of Plaintiff's counsel to serve notice of proceedings uponDefendants' counsel and finally, that Plaintiff's offer of a loan modification should have operated as astay of this action.As to the claim involving the federal action, this cannot constitute a legally cognizant ground for relief inthe instant matter. In order for such injunctive relief to lie, the competing actions must have full andcomplete identity of claims, parties and the relief demanded,
Green Tree Fin. Servicing Cor 
 p
. v. Lewis 280 AD2d 642, 720 NYS2d 843 [2nd De
 pt 
. 2001]
. In the federal action, there is a lack of identity of the partiesin that the Mathons have impleaded sixteen individuals and entities who are not parties to the instantaction. Moreover, the federal action has been brought under the federal Racketeer Influenced andCorrupt Organizations Act ("RICO"), 18 USC § 1961 et. seq. which is not a subject of the instant action.

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