Feynman 4 Justice: Points that make or break a Lyceum Future...
Before you can say if lower court judge was correct, it must be found that the lower court followed the rules.
With no technical terms, he made the technical accessible.
His video explaining the 1986 Challenger disaster before a committee wherein he places a clamped to compression o-ring in ice water and shows that the material, which needed to be resilient, was not resilient at 32 degrees was brilliant.
No science, just logic.
If you ever see the Feynman path integral lecture/video, you will be exposed to math that is beyond the reach of the average person but is explained in such a away that the average person can understand the issue.
We make an efforts at the same, making the legal accessible.
SETTING THE TABLE
What follows in the next tabs is simple words at the beginning of each tab. We will label that section of each tab, the FEYNMAN.
If they make sense, move on to the next tab. If they don't make sense, read further on in the tab where the issue is addressed, the SHALLOW.
If you are ready for a deeper dive, try further, the DEEP.
In addition, upon the request of a friend who believes our explanation of what is going on has been lacking, we will limit the issues to only those that need be addressed to reach what justice demands, Notice and Opportunity to be Heard despite our desire to tell the world of all that has happened (would take a book).
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,
SETTING THE TABLE
Body blow of 2012
When it seemed clear from the law, case law and the facts, that the foreclosure against the Brooklyn Lyceum was abandoned, a motion was made to dismiss a foreclosure in its entirety under a law that specifically detailed how, and when, the court must dismiss a case as abandoned. That law is CPLR 3215(c).
Put quite simply, the defendant has a certain amount of time to answer. That time was dictated by when and how the Summons and Complaint was served. Once that time to answer has expired (the Defendant has "defaulted"), the Plaintiff has one year to take some action, any action, towards a judgment of default (a decision that the defendant's time to answer had expired).
Such an action takes the form of a "Motion for default judgment and order of reference". It must be made with 365 days of Default.
Such a motion need not be presented to the defaulting defendant --UNLESS-- they have participated in some substantive form, that they have "appeared". If a defendant has participated/appeared, the motion must be presented to the defendant in advance, with some notice, as motions without notice never invoke the power of the court. And, if any party has appeared via an attorney, ALL papers must be served on that attorney. The failure to serve papers once a party has appeared or the failure to serve the papers on a party's known attorney, again, never invoke the power of the court.
Any decisions based on Notices/Motions that never invoke the power of the court are, void, not just voidable. "Void, not just voidable" has a very special legal meaning. That means, despite their presence on a piece of paper that may be filed with the court, such violations of statute, and jurisdiction, never have any validity and no entity is ever allowed to benefit from such a decision or act of the court.
In addition, the motion must be supported by (include) a sworn under the penalty of perjury affidavit that the time to answer has not been extended, that the time to answer has expired, that the defendant had not appeared iand that the defendant had not interposed an answer.
All four of those required staements are in the boiler plate "Default and Order of Reference" decision available on the Kings Supreme website.
The court was presented with such a motion supported by such an affidavit and the court issued a judgment of default based on that affidavit.
Therein lies the rub. What if, despite the sworn statement under penalty of perjury by the Plaintiff Attorney (who has since been suspended from the practice of law), a defendant had appeared by counsel, a defendant had been granted extensions of time to answer, a defendant had interposed an answer and the time to answer had not expired when the motion for default was submitted?
After getting a Judgment of Default, the Plaintiff went for the jugular, it sought, again by motion and notice and affidavit, a "judgment of foreclosure and sale".
If the court grants the Judgment of Foreclosure and Sale, the collateral on the loan, the Brooklyn Lyceum, can be sold to the highest bidder at auction in a fashion described by the judgment of foreclosure and sale itself.
Again, the affidavit in support of the motion has to match the wording and meaning of the boilerplate "Judgment of Foreclosure and Sale" from the Kings Supreme Court webcite. Those words are:
from which it appears that each of the defendants herein have been duly served with the Summons and Complaint in this action, or have voluntarily appeared personally or by their respective attorneys, and stating that more than the legally required number of days had elapsed since said defendants were so served and/or appeared; and that none of the defendants had served any answer to said Complaint, nor had their time to do so been extended
The rub, again. "duly served or appeared" and "more than the legally required number of days had elapsed" (since service/apearance) and "none of the defendants had served any answer" and "nor had their time to do so been extended".
From documents submitted BY THE PLAINTIFF 18 months after the motion for BY THE PLAINTIFF "Judgement of Foreclosure and Sale" was submitted, it is clear that "time had been extended", and "answers had been served".
From a reading of the first few items on the docket it is clear that the Brooklyn Lyceum had never been "duly served" as proof of servce of the complaint, that which STARTS the time to answer, has never been filed with the court. And, clearly, if the item starting time to answer was not filed, any affidavit swearing time to answer had expired is flat out perjury. If that perjury is by an attorney, a court officer, it is Fraud Upon the Court by a Court Officer. That becomes important later, when the legal maxim "fraud vitiates all it touches" is addressed.
Paradoxically, the proof of service is submitted in the Motion for Judgment of Foreclosure and Sale. Thus, the Motion that swears time to answer has expired, in and of itself, STARTS the time to answer.
RULES BEFORE RULING
It would seem axiomatic, something assumed to be true without having to prove it, but courts can only rule when the rules have been followed.
For example, no one expects that if a statute requires 8 days notice that less than 8 days notice is adequate. The courts are quite clear on the issue, notice less than the minimum enumerated by a statute never invokes the power of the court.
The same goes for outright lies (perjury) by an attorney in a case, as attorneys swear a special oath to never mislead the court. They can raise somewhat specious arguments, but they cannot make up facts convenient to their client.
Attorney lies are so heinous to the court that there is a specific statute, Judiciary Law 487, that declares ANY misrepresentation is a misdemeanor subject to treble damages. The courts are loathe to use it on one of their own, and rarely do. But when push came to shove and a federal court asked the court of appeals to chime in, chime in they did in Amalfitano where they said even an unsuccessful attempt to mislead invokes the statute.
The legal maxim "fraud vitiates all it touches" cuts to the bone here as what else is a lie by an attorney that convinces the judge of incorrect facts necessary for the court to rule in favor of the perjuror? Whenever a judge grants something premised on such a lie to the court it is, again, VOID, NOT JUST VOIDABLE.
More importantly, no entity can ever be sure of retaining any benefit derived from such violation of statute. There is even a special term for it, "Lack of Jurisdiction".
SHIELD NOT SWORD
The law since the founding of the country has been focused on the prevention of abuses being inflicted by those in a position of power or influence on those not in a position of power or influence.
To that end the system of laws in place have generally sought to make sure that the system errs on the side of those being prosecuted, whether civilly or criminally.
One such result of this philosophy is that those who seek to hold someone accountable(SWORD) are limited to what they present as evidence, on notice to the other side.
They cannot use, nor can the courts seek and use, things not presented in support of the motion, save for official, indisputable documents such as judgments or deeds.
But, on the other side, a party that was not on notice is protected (SHIELD), and can introduce and use, things that the movant did not put on the record in any attempt to impeach the seekers illegally obtained success.
In fact, when the cheating is perjury, as we have here, even a party that was on notice can comeback and attack the illegal offensive maneuver.
In other words, the offense is evaluated on the cards it shows when it makes its play.
The defense, however, can unwind the successful play by showing the offense cheated
This usually comes under the violation of standards so core to the American Judicial system, that the violation of which is toxic, forever.
Notice and opportunity to be heard are the only things that matter. In fact, almost all law can be seen as building on Notice and opportunity to be heard.
No notice, no valid decision. It is analogous to the chant of "No Justice. No Peace!" of the 60s and 70s civil rights actions..
And what we have in the Brooklyn Lyceum foreclosure is a whole bunch of cheating by the offense that the referee (judge) did not catch the first time around.
And, as opposed to football, baseball and basketball, the fact that the referees missed the cheating in the first round does not preclude review later and undoing the cheating resetting the offense and defense to the positions they were in before the cheating.
Oftentimes one may thing that too much time passing is too much "water under the bridge" to ever effectively or ethically unwind an action
That is generally true.... except when lack of jurisdiction is the issue.
When jurisdction is lost, the wheels come off the bus.
As court officers, attorneys and judges, are creatures of the law, any violation of the law can never be considered to have taken hold as how can the passage of time be allowed to validate violations of the law by court officers?
This is so important that many cases, decades old, have been unwound. Thus, it is incumbent on ALL parties to a case, even the party that benefitted by acts in excess of jurisdiction(the power to declare the law).
The best example is a Supreme Court ruling voiding the sale of what had been Arlington National Cemetery some 18 years after it was taken in violation of due process.
In December 1882, the U.S. Supreme Court, in a 5-4 decision, returned the property to Custis Lee, stating that confiscation of the property lacked due process
The U.S. Supreme Court also explained in the 1950 case Mullane v. Cent. Hanover Bank & Trust Co.:
“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”
Some New York cases and what they highlight....
- "pursuant to CPLR §5015, a court may vacate a judgment or order on the basis of fraud, misrepresentation, or other misconduct of an adverse party.'" (Beltway Capital, LLC v. Soleil, 104 AD3d 628, 631 [2nd Dep't 2013] citing CPLR §5015 (a)(3).)
- The courts recognize two types of fraud: extrinsic and intrinsic. Extrinsic fraud "is a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter" (Bank of New York v. Lagakos, 27 AD3d 678 [2nd Dep't 2006]), i.e. causing a party to refrain from appearing on a case "to prevent any possibility of an adverse result." (Shaw v. Shaw, 97 AD2d 403, 403 [2nd Dept 1983].) Extrinsic fraud is present where "defendant might be properly served, but then, through some device, trick or deceit, is led to believe that he or she need not defend the suit." Id. Proof of extrinsic fraud inherently consists of a both a meritorious defense and a justifiable excuse for the default. Id.(U.S. Bank, N.A. v Arizmendy 2014 NY Slip Op 51275(U) )
- In contrast to its inherent powers, courts are statutorily authorized to vacate a judgment under CPLR 5015 (a)(3) for fraud, misrepresentation or misconduct of an adverse party - in Citimortgage, Inc. v. Guarino, 2014
JUSTICE FLOWCHART (JFC): NOTICE
The first question to ask is were the rules of the court followed?
If not, one asks the next question... is this rule a jurisdictional rule?
If it is jurisdictional and the decision is at risk, is it void, or just voidable?
This is a particularly convoluted discussion that can, in the case of the Brooklyn Lyceum, be whittled down to if it is a violation of the Statutory Notice (lack of required advance notice and lack of notice to attorney for Defendants), it is flat out void. And, as flat out void, no party can ever gain any benefit. This is important as when the judgment is just voidable,
Where does that leave this case?
There is an appeal awaiting decision over whether the case was abandoned pursuant to CPLR 3215(c).
- Defendant's had waited too long
- Defendant's had participated too much.
- Plaintiff had a good excuse for waiting more than a year.
Then there is the "Bonanza".
Even before the court can deal with whether the court had jurisdiction pursuant to an abandonment, what is the impact of the papers submitted swearing things that have later been shown by the swearer to be untrue when it was convenient for them?
Yup, Jurisdiction rears its head again.
- Plaintiff sought a Default Judgment, that which can only be sought absent any opposition by defendant whatsoever and absent any extension of time whatsoever. With any opposition or any extension of time, only trial or a Motion for Summary Judgment was / is allowed.
- No notice to attorney of Motion for Default and Order of Reference.
- No notice to attorney of Judgment of Default and Order of Reference.
- No notice to attorney of Motion for Judgment of Foreclosure and Sale.
- Notice to non-attorney is in March of 2011 of Motion to be heard in April of 2001. Yup, ten years in the past.
- No notice of entry to Attorney, as ordered by the Judgment of Foreclosure and Sale.
And a somewhat more insidious problem, the now suspended from the practice of law attorney for the Plaintiff never filed proof of service, the thing that started the time to answer the complaint.
Instead of filing it as its own document like the proofs of service on other parties, and having the time to answer start and waiting for the time to answer to expire, the suspended attorney slipped in an un-timestamped copy of the proof of service as an exhibit in the motion for Default and Order of Reference.
Again, paradoxically, papers in support of a mootion for default that swer time to answer somehow include, for the first time, papers that actually start the time to answer. As an internally inconsisten document, it is quirte the conundum. a motion that required that the time to answer had been expired
GOOD TO HERE
On ??,??? Plaintiff was noticed of a motion under CPLR 3215c to dismiss the case.
On October 24, 2012, that motion was heard by the court. At that hearing the judge instructed the Plaintiff it had until ??? to present opposition to the motion and Defendant was given time to reply to the Plaintiff response.
Two days later, on October 26, 2012, the Judgment of Default was signed by the same judge and entered. That is, the judge knew full well that a challenge to the jurisdiction was present yet he proceeded prior to dealing with the challenge to the jurisdiction.
Plaintiff put in response to motion to dismiss as abandoned. Those papers included an affidavit from the former counsel for the Plaintiff (one since suspended from the practice of law for not being forthcoming to the disciplinary committee). That affidavit supported the necessary justification ("sufficient cause") to show the court how , in effect, a year since default had not actually passed as there were extensions of time given to the Defendant, undocumented extensions of time. The affidavit did, however, detail how defendant had actually appeared prior to the motion for default, a motion supported by an affidavit from said attorney that no defendant had appeared or interposed an answer.
Defendant put in a response to the Plaintiff's opposition stating that the "sufficient cause" put forth by the now suspended attorney, did not meet the threshold of decades of case law, that contested and unsubstantiated assertions by an attorney have no use.
Court then put in a decision refusing to dismiss thecase as abandoned because :
- Defendant waited too long citing caselaw : Fuentes v. Virgil
- Defendant participated too much citing caselaw : ????
- That Plaintiff has shown "sufficient cause" why the time to answer had been extended by acts of one or both parties.
- An extension of time to answer signed by defendant only.
- An extension of time signed by no one which is contested by Defendant.
- "Multiple oral extensions of time to answer" to which there are no records and which is contested by Defendant.
That decision was appealed on January ??, 2013, was fully briefed on ???? and was, after dome 30 months, argued orally before the Appellate Division, Second Department on September 6, 2018.
Video HERE : ____________
After having looked at the merits for two years, the Lyceum set a spell in the tiny, tiny town of Fort Lonesome, Florida, halfway between nowhere and really nowhere all the while sandwiched between giant phosphate mines.
There the Lyceum spent the better part of three months becoming one with a good chunk of David Siegel's, "New York Practice - 4th Edition".
That tome helped ground the Lyceum in what one could call the art of law as well as the science of procedure. The merits of this case are the art of law area. It includes things like was there a note and a mortgage, who were the parties of the note and mortgage, what payments were made and when on the note and mortgage and when, if at all did payments not get performed as per the note and mortgage.
The jurisdiction is where rubber meets the road of the science of procedure.
The Lyceum learned that things that go to notice and opportunity to be heard are inviolate and that the lack of either produce decisions that vanish in the mist when challenged as having not properly invoked the power of the court.
The Lyceum figured out that if the lower court said the Lyceum had appeared if a motion was adjourned and not even heard, there must be a reason why the court failed to use stipulations of time to answer between the plaintiff and the defendant as such an appearance.
Why became obvious as the Lyceum dug into the details. If the court chose a flimsy saappearance standard late into the case, why did the court ignore a solid appearance early in the case.
That little oddity, why did the court choose an tortured appearance act instead of a solid one?
After consuming the Siegel tome, it went off like rockets in the brain. There must be a problem with the solid appearance.
Here is the rub...The now suspended from the practice of law attorney swore that no party had appeared or interposed an answer. But the court was now using such an appearance and such an answer to justify that the Defendant had waived abandonment by participating.
The Siegel tome informed the Lyceum that, as opposed to parties that do not appear, any appearance by a party (stipulations to extend time to answer and answers) requires that all future papers be served on that party. A party who has not even bothered to appear / answer is deemed to have wived right to notice.
It gets dicey here because the court, in granting the Default, accepted the now suspended attorney's affidavit in support that swore that all parties had been served, no party had appeared and no party had answered.
Then, when the defendant challenged the decision premised on thse assertions by the now suspended attorney, the court affirmed the courts earlier decision because of something that the now suspended attorney had sworn not occurred, an apperance and an answer submitted years after the affidavit sweraing they did not exist formed the basis of the court's decision to not dismiss the case.
It make our head hurt. How could the court use evidence on not on the record at the time of the decision to support the decision when challenged when the evidence submitted shws clearly thenow suspended attorney commited perjury to incent the court to find for the Plaintiff omn the issie of default.
The hits just keep on coming...The appearance that is in question was not just an appearance by the Lyceum, it was an appearance by Lyceum's counsel, an attorney.
An appearance by a party triggers requirement of notice of motions on that party. If there is no notice of a motion, the power of the court to hear the motion is not invoked.
An appearance by counsel triggers requirement of notice of motions on that attorney. If there is no notice of a motion on that attorney, the power of the court to hear the motion is not invoked.
The moment the court found that evidence submitted after the decision (an appearnce by counsel) could be used to support the decision, the court should have seen if that counsel had been served the notice of the motion for default and, for that matter, each and every notice of motion, any paper andd any decsions as the failure to serve such parers are jurisdictional failures.
The Plaintiff NEVER SERVED ANYTHING, EVER ON THE DEFENDANTS.