Why put oral argument online?
Because the court and judge we are before has, several times, prevented making a record of secret hearings that should be a public record as per Article VI of the New York State Constitution when a record of oral argument would make quick work of an appeal.
Because the same judge has threatened me, more than once, with arrest when demanding the right of a court reporter, all the world should know what was being attempted to be said.
Because, if it can happen to the Brooklyn Lyceum (judge ignoring arguments of the self-represented and bending over backward for people with attorneys and developers)...., It can, and will, happen to you.
(done to the tune of "Tinker to Evers to Chance.)
The inviolate American Rule
"Notice and Opportunity to be Heard",
lawyers warned of this in Law School,
"Notice and Opportunity to be Heard".
Not hard at all to juggle
Going through the trouble
Prevent reducing decisions to rubble
"Notice and Opportunity to be Heard".
The initial moving papers, Motion for Default Judgment, are supported by an affidavit by the attorney,???????????????, for the Plaintiff who brought the case, LYCEUM BATHHOUSE, LLC.
There is a court website available boilerplate for such a judgment which contains the following:
The affidavit contains the following:
New York is run by a set of rules called the New York Civil Practice and Rules, or CPLR.
Since those rules are, according to one of the rules (CPLR 4511), subject to the Common Law, they must just be an approximation to the Common Law, like Cliff Notes about Moby Dick. Read the Cliff Notes, get the gist, and, maybe, pass the test (bar examination).
Those rules define an appearance as any of the following:
- a timely notice of appearance,
- a timely pre-answer motion (a few are available), or
- a timely service of an answer.
serving timely service of an answer.
- Perjury by Attorney #1 for initial Plaintiff *4: Affidavit in support of Motion for Judgment of Default and Order of reference swears no defendant appearance, no defendant answer interposed, no defendant extension of time and defendant time to answer had expired)
- Misrepresentation by Attorney #2 for Acquiring Plaintiff: No notice of appearance (motion by defense attorney in Jan 2013 rejected for not having filed Notice of Appearance (unequal treatment under the law?))
- Perjury by Attorney #2 for Acquiring Plaintiff *1: Affidavit in support of Motion to amend caption :(swearing, under penalty of perjury, that Acquiring Plaintiff had acquired complaint prior to first appearance while submitting proof of opposite)
- Procedural Due Process (PDP) Violaton #1: (Notice of Motion for default not served on Attorney for Richmond/231 Fourth Avenue Lyceum LLC (231 (Richmond and 231 hereinafter referred to as DEFENDANTS))
- PDP Violation #2 : Notice of Motion to amend caption never served on Attorney for Defendants
- PDP Violation #3 : Judgment of Default and Order of Reference not served, with or without Notice of Entry, on Attorney for DEFENDANTS
- Perjury by Attorney #2 : Motion of Judgment of foreclosure and sale sas
This case is about a foreclosure sought by a lender. Pretty simple in that regard. But there are rules that MUST be followed lest those with influence throw those without influence under the bus.
When one borrows money, one signs a note. Often, instead of just going after your credit rating if you fail to pay according to the terms of the note, one signs a mortgage stating what collateral can be sold upon proof and judicial review that the debt is not being repaid according to the terms of the note.
When this is done, it is called a foreclosure sale, and since it seeks a judicial determination that you no longer own a property, it must, at various stages, be done on Notice and Opportunity to be Heard.
Notice and Opportunity to be heard is the soul and bread and butter of the judicial system.
The Notice and Opportunity to be heard comes in three flavors:
- Statutory as defined by the New York State Legislature,
- Judicial as defined by a judge and
- "substantive", a wide-ranging grey area.
We need not address the grey substantive because the failures of statutory and judicial Notice and Opportunity to Be Heard are so numerous and clear.
In a foreclosure there is a Complaint followed by one of three ways to get to the stage where a property (collateral can be sold).
- One is a Default judgment, obtainable when a Defendant has not appeared by way by contesting, in any fashion, the complaint such as by serving an answer... or, by seeking, and receiving, any benefit in the case, such as an extension of time to answer. Since, in seeking a default, the Plaintiff is swearing you never responded, it is a fast track method as the judgment is solely on the Plaintiff's complaint (pleadings). The court, in a Default, so long as it really is a default as sworn to by the Plaintiff, does not demand or provide an opportunity for the Defendant to contest the default, except, as what we have here, the Plaintiff waits more than a year from the default to seek a default judgment. Thus, the sworn statements of the Plaintiff influence the court completely and utterly. When you have, as we have here, a sworn statement by a Plaintiff that is stacked with lies (perjury), the court is perverted by such lies to the court.
- A second is by a motion for summary judgement, where the Plaintiff puts you on notice of the motion and you have that notice and an opportunity to be heard
- A third is to have a full trial.
If you get a Default, as was done here, or a summary judgment or a full trial decision, the next step is to obtain a Judgement of Foreclosure and Sale.
That , too, must be done on Notice and Opportunity to be heard if you have participated (such as by extension of time to answer or answer).
Peeling back the Onion: bad Notice of Entry #1
Working our way back from the end we have a Judgement of Foreclosure and Sale, that by its clear and standard terms form from the Kings Supreme website, mandates that BEFORE ANY SALE that a copy of the judgment, ALONG WITH A NOTICE OF ENTRY, be served on any appearing defendant as well as the signer of the mortgage., A NOTICE OF ENTRY is a cover letter attached to a copy of an entered judgment stating the date and time the Judgment was entered.
Case law in this situation is stark, a notice of entry is invalid if the date stated in the Notice does not match, EXACTLY, the date and time stamp on the entered order. And, guess what, the date in the Notice of Entry served, was off by two years. Again, caselaw shows that being off one day does not invoke any power of the court
Peeling back the Onion: Bad Notice #1.
Even if the sale was not precluded by virtue of abad Notice of Entry of the Judgment of Foreclosure and Sale, the Notice of the Motion for a Judgement of Foreclosure and Sale was beyond hope as, as opposed to the 3 or 5 or 8 day notice necessary, the Notice of Motion is dated March ??, 2011. The Notice notices a hearing that was scheduled for April ??, 2011, . As there is un-tolled caselaw stating that notice of 7 days when 8 is required never invokes the power of the court, the court cant possibley have its power infvoked by a notice of a hearing that happened ????? days in the past.
Peeling Back the Onion : Time to answer over before it began?
Even if the court somehow finds that the bad Notice or Entry was ok and the bad notice was ok, how can it be posible that the court granted a juegment of default premised on , fr a corporation or llc, filing a proof of eservivce,