SUPREME COURT OF THE STATE OF XXX COUNTY OF XXX
US BANK, NA, AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2016 SC6
TITLE TRUST,
Plaintiff
-against-
XXX, et al.,
Defendants
Index No. XXX
XXX
Assigned Judge:
Hon. XXX
AFFIDAVIT IN SUPPORT OF
MOTION TO VACATE DEFAULT JUDGMENT
1. I, XXX, one of the Defendants, resides at XXX
2. I am the owner of the property located at XXX
3. I make this Affidavit in Support of my Motion to Vacate the Default Judgment.
BACKGROUND FACTS
4. The defendant, XXX, was a current customer of Countrywide
Home Loans, Inc. on her other properties. In XXX, a representative from Countrywide
Home Loans, Inc. contacted the defendant, XXX, informing her she had
equity in the subject property, and they could refinance her loan to take advantage of the equity
available.
5. The original paperwork signed on April XXX, was with Countrywide Home
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Loans, Inc. who purported to be licensed and legally allowed to conduct business in the State
of XXX as a mortgage lender. The defendant, XXX, executed a Note
and Mortgage under these beliefs.
6. The defendant, XXX, was receiving monthly mortgage
statements from Countrywide Home Loans (Exhibit “1”).
7. The statement instructs the defendant, Ashmeen Modikhan, to “make check
payable to Countrywide Home Loans at PO Box 660694, Dallas, XXX
8. On or about April XXX, the defendant, XXX, received a
mortgage statement from Bank of America Home Loans. It states that BAC Home Loan
Servicing, LP “services your home loan on behalf of the holder of your note.” The name of
the holder of the note was not revealed. (Exhibit “2”).
9. In 2008, Countrywide Financial Corporation, a Delaware corporation, and all its
subsidiaries (including Countrywide Home Loans), merged with and into Red Oak
Merger Corporation, a wholly own subsidiary of Bank of America, the surviving company.
10. According to Securities and Exchange Commission filings, upon the acquisition,
Red Oak Merger Corporation, changed its name to Countrywide Financial Corporation, now
a Bank of America wholly owned subsidiary. This means all the subsidiaries became
Countrywide Financial Corporation, a Bank of America subsidiary.
11. The great financial collapse was from the years XXX to XXX
12. After the collapse many industries suffered. In September of 2008 the defendant,
Ashmeen Modikhan’s full-time position at a travel agency was discontinued.
13. The defendant, Ashmeen Modikhan immediately reached out to Bank of
America, N.A. and spent most of 2009 applying for a loan modification. Bank of
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America, N.A. consistently lost The Defendant, Ashmeen Modikhan’s, information, needed more
information, or gave other excuses as to why the Defendant, Ashmeen Modikhan’s, loan
modification remained stalled in the processing stage. During this entire period Bank of
America, N.A. acted in bad faith and they never gave Defendant, Ashmeen Modikhan’s a loan
modification. Defendant, XXX, was led to believe by Bank of America, N.A.
that an agreement could be made on terms to modify the loan.
14. On or about January 29, 2010, Paramount Land, Inc. created and presented a
document titled “Assignment of Mortgage” for recording in the Queens’ Recorder’s office
under CRFN#2010000034349. The document purports to assign the mortgage from MERS,
Inc. as nominee of Countrywide Home Loans, Inc. to BAC Home Loans Servicing LP fka
Countrywide Home Loans Servicing, LP dated October 29, 2009, but effective November 7,
2008 (Exhibit “3”). On page five of the document are the instructions to return the
document to Bank of America f/k/a Countrywide Home Loans, Inc., c/o Rosicki, Rosicki and
Associates.
15. On or about March 12, 2010, the Defendant, Ashmeen Modikhan, received a
“flyer” type document in the mailbox at 8710 149 th Avenue, Apt 5N, Howard Beach, NY
11414 instructing the “Queens homeowner” to appear at the “Settlement Conference” on
04/28/2010. (Exhibit “4”). The Defendant, Ashmeen Modikhan, was never personally served a
summons and complaint (Exhibit “5”) as this was not her residence. This is an insufficient
service of process.
16. Per CPLR §308, personal service one must make genuine attempts at personal
of substituted service (as defined in the rules) before the “nail and mail” option can be employed.
17. The Defendant, XXX, was denied her due process.
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18. The Defendant, XXX, did appear in court on the designated time
and date. The court directed the Defendant, XXX, to the foreclosure
prevention court clinic. The Defendant, XXX received a copy of the complaint
in the court clinic.
19. The complaint failed to provide a copy of the April XXX, note in favor
of Countrywide Home Loans, Inc. or proof of the succession from Countrywide Home Loans,
Inc. to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP.
Therefore, the presumption is BAC Home Loans Servicing, LP did not possess the note at the
time the complaint was filed.
20. The Plaintiff’s counsel was Rosicki, Rosicki and Associates.
21. The Defendant, Ashmeen Modikhan, sought free legal consult after leaving the
court hearing on April XXX, and was advised she needed to answer the compliant.
She answered the complaint as a pro se defendant and filed it with the court.
22. Unable to obtain an attorney, the Defendant, XXX remained pro
se in the instant case throughout the case and until the Order of Dismissal Pre-note was entered
July 23, 2014.
23. On or about February 6, 2012, the mortgage “loan” was transferred to Bank
of America, N.A. per a Notice of Assignment, Sale, or Transfer of ownership of Mortgage
Loan provided by Bank of America, N.A on February 14, 2012. (Exhibit “6”) The previous
creditor is not named.
24. On or about June 28, 2012, the Defendant, XXX, filed for Chapter 7
bankruptcy protection in the Eastern District of New York (Brooklyn) under case number
12- 44750-ess. BAC Home Loans Servicing was listed.
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25. On or about October 1, 2012, Bank of America, N.A. transferred the servicing
rights to Ocwen Loan Servicing, LLC in correspondence from Bank of America dated September
12, 2012. (Exhibit “7”)
26. On or about October 10, 2012, a Discharge of Debtor Order of Final Decree was
entered in the bankruptcy case. (Exhibit “8”)
27. On or about June 14, 2013, the mortgage “loan” was transferred to BofA Merrill
Lynch Asset Holdings, Inc. (Exhibit “9”) naming Ocwen Loan Servicing, LLC as its servicer
in correspondence from Ocwen dated July 11, 2013.
28. On or about January 28, 2014, a document titled “Assignment of Mortgage” was
executed assigning the mortgage from Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP to Christiana
Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but
as Trustee of ARLP Trust 3 and recorded under CFN#2014000203670 on June 13, 2014 (6
months after its creation) (Exhibit “10”). The document was created, executed and
presented by Indecomm Global Services Bank of America’s attorney in fact.
29. On or about May 8, 2014, a document titled “Assignment of Mortgage” was
executed assigning the mortgage from Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP to Christiana
Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but
as Trustee of ARLP Trust 3 and recorded under CRFN#2014000254316 on August 1, 2014 (3
months after creation (Exhibit “11”). This document was executed by Ocwen Loan Servicing,
LLC as Bank of America’s attorney in fact. This would be impossible since Christiana
Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity
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but as Trustee of ARLP Trust 3 already had the loan according to the January XXX
“assignment.”
30. On or about June 4, 2014, the court order a status conference to be held on July
23, 2014. The Court ordered the plaintiff to file a Foreclosure Affirmation/Certificate of Merit.
31. In June 2014, due to the serious injuries while employed by American Airlines, the
Defendant, Ashmeen Modikhan, had to retain a Worker’s Compensation attorney, a
disability attorney and a personal injury attorney, the personal injury matter is still pending.
32. During the years of 2014 to 2019, the Defendant, Ashmeen Modikhan, suffered
from severe and debilitating pain from her injuries resulting in multiple surgeries (one involved
a spine stimulator). She was placed on a pain management regime that included strong
narcotics and sleep medicine that left her in a stupor throughout these years. She couldn’t focus
on anything but her medical crisis. It was during this time that she relied on the integrity of her
counsel to act in her best interest.
33. In July of 2014, the Defendant, Ashmeen Modikhan, retained an attorney to
assist in her foreclosure proceeding on her homestead property. It was at this time she
informs her attorney of this case. Her counsel appeared with her at the July 23, 2014, status
conference but not as counsel of record.
34. On or about July 23, 2014, this case was Dismissed Pre-Note due to Plaintiff,
BAC Home Loans Servicing LP, failing to present the Note and complying with the Status
Conference Order. (Exhibit “12”) The presumption is both parties were present.
35. On or about August 6, 2014, a Consent to Change Attorney was filed by
the plaintiff’s counsel, Rosicki, Rosicki and Associates. Plaintiff’s new counsel was
Leopold & Associates. (Exhibit “13”).
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36. On or about June 25, 2015, the servicing of the loan transferred from Ocwen
Loan Servicing, LLC to Fay Servicing, LLC per Ocwen’s June 4, 2015, letter. (Exhibit “14”)
37. On or about August 23, 2016, Clarfield, Salomone & Pincus, P.L. filed a Notice
of Appearance representing the Plaintiff, BAC Home Loans Servicing LP.
38. On or about November 22, 2016, Plaintiff counsel, Gross Polowy, LLC filed
a Motion to Restore the Action. (Exhibit “15”) The basis for an “excusable default” for not
filing this motion within the one (1) year limitation as provided in CPLR 5015 was counsel
for the plaintiff didn’t appear at the status conference hearing on July 23, 2014. The motion is
based on hearsay and lacking full disclosure that their client was no longer the party in
possession of the note. In the current atmosphere of our judicial system and after
everything The Defendant, Ashmeen Modikhan, has discovered in both her foreclosure and
bankruptcy cases, it is clear the scales of justice are tilted in favor of the plaintiff. It is clear
that an attorney’s credibility and integrity as officers of the court can no longer be taken for
granted. The evidence and testimony must be held accountable to the same standard as a
civilian.
39. On or about December 9, 2016, the Honorable Kevin J. Kerrigan’s
Memorandum referring the Motion to Restore the Action back to the presiding judge, the
Honorable Martin J. Schulman was filed on December 19, 2016, 10 days later. (Exhibit
“16”) Yet, on February 1, 2017, some unidentified person/entity presented three random
documents to the court which were filed as “received papers”. In this filing is the exact same
memorandum without the “Filed Dec 19, 2016, County Clerk Queens County” stamp.
(Exhibit “17”) There is no indication on the docket or on the document who entered these
“received papers” to the court or provide a reason to file the unfiled but executed memorandum
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along with a proposed short form order.
40. On or about January 5, 2017, a short order vacating the dismissal of the
case imposed on July 23, 2014, and restored this case was executed and filed on February 1,
2017. (Exhibit “18”) The execution and format of this order is not consistent with his July
23, 2014, Order Dismissing the Action (also Exhibit “12”). On the preceding order the judge’s
full printed name is below and the paragraph format is single spaced.
41. On or about May 19, 2017, the mortgage loan was assigned, sold or transferred
to U.S. Bank N.A., as Legal Title Trustee for Truman 2016 SC6 Title Trust with Fay
Servicing, LLC as the named servicer as stated in correspondence from Fay Servicing dated
May 26, 2017. (Exhibit “19”)
42. On or about June 30, 2017, a document titled “Assignment of Mortgage”
was executed assigning the mortgage from Christiana Trust, a division of Wilmington Savings
Fund Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 3 to US Bank,
NA as Legal Title Trustee for Truman 2016 SC6 Title Trust and recorded under
CRFN#2017000278213 on July 28, 2017 (Exhibit “20”). This document was executed by
Meridian Asset Services, Inc., the assignor’s attorney in fact. There was no power of
attorney or evidence Meridian Asset Services, Inc. had the authority to execute this document.
43. On or about October 3, 2017, Gross Polowy, LLC files a Consent to
Change Attorney from Pincus Law Group, PLLC. (Exhibit “21”).
44. On or about December 11, 2017, plaintiff’s counsel, Gross Polowy, LLC, filed
a Notice of Motion, Affirmation, Memorandum of Law in Support. A copy of the alleged
original note is presented for the first time in this matter seven (7) years after the original
complaint was filed.
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45. Plaintiff’s counsel, Gross Polowy, LLC, requests in their motion “that the
caption be amended to reflect the plaintiff as US Bank National Association as Legal Title
Trustee for Truman 2016 SC6 Title Trust. However, plaintiff’s counsel, Gross Polowy,
LLC, does not provide and chain of possession evidence supporting ownership of the note by
US Bank National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust.
46. On or about June 4, 2018, an order was entered amending the caption to read
US Bank National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust as the
new plaintiff and awarding same its summary judgment. The signature only refers to a “Justice
of the Supreme Court” and the “signature” is illegible.
47. On or about April 5, 2019, a Default Judgment was entered in favor of US
Bank National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust. (Exhibit
“22”)
48. Ashmeen Modikhan was advised by her counsel to file for bankruptcy
protection after the default judgment was entered.
49. The Defendant, Ashmeen Modikhan, was unable to retain bankruptcy counsel
and filed her Chapter 7 in the Eastern District of New York (Brooklyn) under case number 19-
44172-ess pro se on July 9, 2019.
50. Due to the “fog” caused by her intense pain management regime because of
her severe pain and unable to obtain counsel she was unable to complete the bankruptcy process
and the case was dismissed on August 26, 2019.
51. On or about October 31, 2019, the Defendant, Ashmeen Modikhan, filed
for protection under Chapter 13 bankruptcy under case number 19-46591. She filed a
skeleton petition as a pro se debtor. The case is still active.
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52. In November 2019, Defendant, Ashmeen Modikhan, retained bankruptcy
counsel, Aronow Law Firm. P.C.
53. By the beginning of 2020, The Defendant, Ashmeen Modikhan, was
now suffering from severe depression. Due to that “fog” she was living in and never have
been on these types of medications she was unaware of how they would affect her daily life
and mental awareness. Completely unaware she was doing things while under the influence of
the medication that could have harmed herself. Her children were terrified she would hurt herself
and confronted her to discuss the narcotics she was taking and how she had to get off them.
Ashmeen agreed she would have to find another path for pain management; so, from January
2020 to July 2020, the Defendant, Ashmeen Modikhan, painfully and carefully weened herself
from the narcotics.
54. The Defendant, Ashmeen Modikhan, is 100% permanently disabled because of
her serious injuries sustained at her former place of employment. She suffers from permanent
nerve damage and complex regional pain syndrome.
55. Because of the foregoing facts The Defendant, Ashmeen Modikhan, believes she
has the grounds for approval of her Motion to Vacate.
56. New York CPLR 5015 provides specific grounds for the approval of a Motion
to Vacate they are:
i. Excusable default; or
ii. Newly discovered evidence; or
iii. Fraud, misrepresentation, or other misconduct from an adverse party; or
iv. Lack of jurisdiction; or reversal, modification or vacatur of a prior
judgment.
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POINT I.
EXCUSABLE DEFAULT
57. As I stated above in the facts, I retained several attorneys to represent me. I
relied on my attorneys to give me sound legal advice and act in my best interests.
58. Rule 1.1(a) of the New York Rules of Professional Conduct provides that a
lawyer should provide competent representation to a client. The Rule proceeds to define
“competent representation” as that which requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
59. Further, Rule 1.3(a) provides that a lawyer shall act with reasonable diligence and
promptness in representing a client.
60. Rule 1.4 of the New York Rules of Professional Conduct also requires attorneys
to maintain prompt communication with their clients.
61. I do not believe I received adequate advice from any of my attorneys, nor did
they act in my best interest.
62. As I stated above in the facts, I became seriously ill and was heavily medicated
for years. At some point my children became very concerned for my mental and physical
health. I was able to wean myself off the medication and take control of the situation.
63. As I stated above in my facts, I terminated my foreclosure attorney in the
latter part of 2020 and was provided a copy of my file from his office. I discovered vital
evidence unseen by me or the court in 2017 that would have presented facts of the true holder
of the note.
64. My attorney, the plaintiffs and their collective counsel worked to bias this
court through deception, deceit, misrepresent and fraud against me for their own financial gain.
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My children and I are victims of legal, financial, emotional and mental abuse due to the
purposeful and willful actions of officers of this court.
65. I will present several failures in this illegal foreclosure. This matter should
be decided on the merits of the case not on a failure of process of the entire matter.
66. My attorney failed to communicate with me of any trial scheduled.
67. I believe there are reasonable excuses for my default. The court has the
discretion to decide if they were reasonable.
68. Article 1, section 6 of the Constitution of the State of New York provides that no
person shall be deprived of life, liberty, or property without due process of law. My property
rights should not be denied by a failure of process, deception, misrepresentation,
misconduct and fraud committed by the Plaintiff and its counsels.
69. THEREFORE, because the reasons stated above this motion should be
granted in its entirety.
POINT II.
FAILURE OF DUE PROCESS BY INSUFFICIENT PROCESS OF SERVICE
70. As stated above in the facts, The Defendant, Ashmeen Modikhan, was not
legally served according to CPLR §308.
71. CPLR § 308, like CPL § 150.40(2), specifies the required mode of service on a
“natural person”. CPLR § 308 is generally applied as written; and the fact that the defendant
learned of the action still does not cure improper service when the defendant timely moves to
dismiss on that ground. See Macchia v. Russo, 67 N.Y.2d 592, 594–95, 505 N.Y.S.2d 591, 496
N.E.2d 680 (“the statutory requirements [for personal service] could not be plainer”, and “in a
challenge to service of process, the fact that a defendant has received prompt notice is of no
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moment”). Accordingly, a defendant’s actual receipt of the summons and complaint is not
dispositive of the efficacy of service.
72. Ordinarily, two or three attempts at personal service at a proper place should
fully satisfy the requirement of reasonable diligence and allow substituted service. See Pizzolo v.
Monaco, 186 A.D.2d 727, 588 N.Y.S.2d 910 (N.Y. App. Div. 1992).
73. On or about March 12, 2010, The Defendant, Ashmeen Modikhan, received a
“flyer” type document in the mailbox at 8710 149 th Avenue, Apt 5N, Howard Beach, NY 11414
instructing the “Queens homeowner” to appear at the “Settlement Conference” on
04/28/2010 (also Exhibit “4”). The Defendant, Ashmeen Modikhan, was never personally
served a summons and complaint (also Exhibit “5”) as this was not her residence. This is an
insufficient service of process.
74. Per CPLR §308, personal service one must make genuine attempts at personal
of substituted service (as defined in the rules) before the “nail and mail” option can be
employed.
75. The document did not even name the defendant, Ashmeen Modikhan, specifically.
76. Per CPLR §308, personal service a plaintiff must make genuine attempts
at personal or substituted service (as defined in the rules) before the “nail and mail” option can
be employed.
77. This “nail and mail” attempt is the only attempt made to serve The
Defendant, Ashmeen Modikhan, the Notice, Complaint and Summons in this case. This is an
insufficient service of process.
78. The Defendant, Ashmeen Modikhan, was never properly served a summons
and complaint by either personal delivery or substituted delivery as outlined in CPLR §308. This
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is an insufficient service of process.
79. THEREFORE, because the initiation of this matter was insufficient due to
improper service of process this matter should be dismissed.
POINT III.
LACK OF STANDING – FAILURE TO PRODUCE ORIGINAL NOTE
80. As stated above, on April 24, 2007, The Defendant, Ashmeen Modikhan,
was presented with closing documents with the lender stated as Countrywide Home Loans, a
New York corporation. It was her belief on that date that was her lender.
81. UCC §§ 3-104 and 3-804 the plaintiff must produce the original note to maintain
the cause of action for enforcement of the note.
82. Either a written assignment of the underlying note or the physical delivery of the
note prior to the commencement of the foreclosure action is sufficient to transfer the obligation,
or the mortgage passes with the debt as an inseparable incident. See Weaver Hardware Co. v
Solomovitz, 235 NY 321; Payne v Wilson, 74 NY 348, 354-355 [1878]; LaSalle Bank Natl. Assn.
v Ahearn, 59 AD3d 911, 912; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d at 674;
Flyer v Sullivan, 284 App Div 697, 699.
83. Further, CPLR 3101 provides that `[t]here shall be full disclosure of all matter
material and necessary in the prosecution or defense of an action, regardless of the burden of
proof, by … a party, or the officer, director, member, agent or employee of a party’" Bayview
Loan Servicing, LLC v Charleston, 175 A.D.3d 1229, 1231 [2019], quoting CPLR 3101[a][1]).
84. On January 6, 2010, a summons and complaint were entered in this case
from BAC Home Loans Servicing, LP fka Countrywide Home Loans, LP. No copy of the
original note or any evidence of chain of possession was attached to the complaint. Therefore,
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the presumption is they did not have possession of the note.
85. The Plaintiff’s counsel was Rosicki, Rosicki and Associates.
86. On or about January 29, 2010, Paramount Land, Inc. created and presented
a document titled “Assignment of Mortgage” for recording in the Queens’ Recorder’s office
under CRFN#2010000034349. The document purports to assign the mortgage from
MERS, Inc. as nominee of Countrywide Home Loans, Inc. to BAC Home Loans Servicing
LP fka Countrywide Home Loans Servicing, LP dated October 29, 2009, but effective
November 7, 2008 (also Exhibit “3”).
87. On page three of the document is the instructions to return the document to
Bank of America f/k/a Countrywide Home Loans, Inc., c/o Rosicki, Rosicki and Associates.\
88. On page one of the Mortgage dated April 24, 2007, in favor of Countrywide
Home Loans, Inc is a MIN (MERS identification number). The number is 1000157-0007930723-
3.
89. According to the MERS ID® online look up tool, the number 1000157-
0007930723-3 is attached to a note dated April 24, 2007, which became inactive with Bank
of America, NA as the servicer and Bank of America, NA as the investor. There is there is
confusion as to is in possession of the note. (Exhibit “23”)
90. According to New York’s Secretary of State’s, Paramount Land, Inc. registered
on October 20, 2009, and remains active. The principal executive office address mirrors the
address on the “assignment.” The Chief Executive Officer is listed as Thomas Rosicki
located at 51 East Bethpage Road, Plainview, New York 11803.
91. In United States ex rel. Grubea v. Rosicki, Rosicki & Assocs., 12-cv-7199, the
Defendants were found guilty of multiple fraudulent crimes committed between 2009 through
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2018 and fined several million dollars. It is stated that Rosicki was approved to perform legal
work for the entity in foreclosures by and for Fannie Mae. (Exhibit “24”) 1
92. The fact the complaint filed by Rosicki, Rosicki and Associates on January 6,
2010, without any evidence of their client had possession of the note, their admitted fraudulent
activity between 2009 through 2018, and an “assignment” created and recorded by thier
company Paramount Land, Inc. weeks later stating the “effective date” of the assignment being
November 7, 2008 it is presumed this document is fraudulent and BAC Home Loans
Servicing LP fka Countrywide Home Loans Servicing, LP did not have possession of the note
on January 6, 2010.
93. As stated, the original lender at closing was Countrywide Home Loans, Inc. as
the lender. They are not named as Plaintiff.
94. On or about January 11, 2008, according to SEC filings, Countrywide
Financial Corporation, the parent company of Countrywide Home Loans, merged with and
into Red Oak Merger Corporation, a wholly owned subsidiary of Bank of America, N.A.
95. In or around October 2008, according to SEC filings, Red Oak Merger
Corporation changed its name to Countrywide Financial Corporation, now a Bank of America
subsidiary. This means all of Countrywide Financial Corporation subsidiaries now share the
same name, Countrywide Financial Corporation, a BOA subsidiary. Countrywide Home Loans
was included.
96. There is not a statement made in the original foreclosure complaint the
plaintiff, BAC Home Loans Servicing LP had possession of the note. There is not a
statement that an officer of the corporation had possession of the original Note. The
1 https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-settlement-civil-fraud-claims-against-law-
firm-rosicki
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plaintiff must be in the possession of the note at the time of filing a complaint for foreclosure.
Therefore, the presumption is that BAC Home Loans Servicing LP fka Countrywide Home
Loans Servicing, LP was not in possession of the note and this matter should be dismissed.
97. On or about February 6, 2012, the mortgage “loan” was transferred to Bank
of America, N.A. per a Notice of Assignment, Sale, or Transfer of ownership of Mortgage Loan
per Bank of America correspondence dated February 14, 2012. (also Exhibit “6”)
98. On or about June 14, 2013, the mortgage “loan” was transferred to BofA
Merrill Lynch Asset Holdings, Inc. per a notice provided by Bank of America (also Exhibit “9”)
naming Ocwen Loan Servicing, LLC as its servicer. BofA Merrill Lynch Asset Holdings, Inc.
has never been named in this action or anywhere in the recorded documents to date as having
possession of the note.
99. On or about January 28, 2014, a document titled “Assignment of Mortgage”
was executed purporting assignment of the note and mortgage from Bank of America, N.A.,
successor by merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans
Servicing, LP to Christiana Trust, a division of Wilmington Savings Fund Society, FSB,
not in its individual capacity but as Trustee of ARLP Trust 3 and recorded under
CFN#2014000203670 on June 13, 2014 (6 months after its creation) (also Exhibit “10”). The
document was created and presented by Indecomm Global Services Bank of America’s
attorney in fact. This would be impossible because BofA Merrill Lynch Asset Holdings, Inc.
had the note. Furthermore, Christiana Trust, a division of Wilmington Savings Fund Society,
FSB, not in its individual capacity but as Trustee of ARLP Trust 3 has never been named in this
action or any other to date as having possession of the note.
100. On or about May 8, 2014, a document titled “Assignment of Mortgage”
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was executed assigning the mortgage from Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP to Christiana
Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but
as Trustee of ARLP Trust 3 and recorded under CRFN#2014000254316 on August 1, 2014 (3
months after creation (also Exhibit “11”). This document was executed by Ocwen Loan
Servicing, LLC as Bank of America’s attorney in fact. This is a separate document executed
and recorded by a different entity but purports to assign the note and mortgage between the
same parties. However, Ocwen Loan Servicing, LLC was the last known servicer.
101. On or about June 4, 2014, the court order a status conference to be held on July
23, 2014. The Court ordered the plaintiff to file a Foreclosure Affirmation/Certificate of Merit.
102. On or about July 23, 2014, this case was Dismissed Pre-Note due to Plaintiff,
BAC Home Loans Servicing LP and its counsel, failing to present the Note or file a
Certificate of Merit. (also Exhibit “12”) The plaintiff couldn’t lawfully complete a
Certificate of Merit or produce a note because there were are several entities purporting to
have possession of the note; Countrywide Home Loans, Inc., Countrywide Financial
Corporation, a Bank of America subsidiary, BAC Home Loans Servicing LP fka
Countrywide Home Loans Servicing, LP, BofA Merrill Lynch Asset Holdings, Inc., and
Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual
capacity but as Trustee of ARLP Trust 3.
103. On or about August 6, 2014, Consent to Change Attorney was filed by the
plaintiff, BAC Home Loans Servicing, LP’s counsel, Rosicki, Rosicki and Associates.
Plaintiff’s new counsel was Leopold & Associates. (also Exhibit “13”) Rosicki, Rosicki and
Associates purported to execute the document on July 22, 2014, the day before the status
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conference on July 23, 2014. Jon King, a contract management coordinator for Ocwen Loan
Servicing, LLC as servicer for BAC Home Loans Servicing, LP fka Countrywide Home
Loans Servicing, LP, the plaintiff purported to execute the document on July 23, 2014.
However, Leopold & Associates didn’t execute the document until July 28, 2014, after the status
hearing held on July 23, 2014.
104. Rosicki, Rosicki and Associates were fully aware and had ample time to
provide the court with a Certificate of Merit attaching a copy of the note but failed to do so.
Therefore, the presumption is BAC Home Loans Servicing, LP fka Countrywide Home Loans
Servicing, LP did not have possession of the note at the time the complaint was filed.
105. BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing,
LP never produced evidence of being in possession of the Note and Mortgage prior to
allegedly assigning the Note and Mortgage to Christiana Trust, a division of Wilmington
Savings Fund Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 3.
Therefore, the presumption is that Christiana Trust, a division of Wilmington Savings Fund
Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 3 did not possess the
note.
106. Seven years later, a copy of the alleged original Note is presented as evidence
by Kathleen Puscheck, Esq. of Gross Polowy, LLC’s December 11, 2017, “Notice of Motion
and Affirmation of Regularity” (Exhibit “25”) The copy of the alleged Note displays one blank
and undated endorsement by Michele Sjolander as Executive Vice President of Countrywide
Home Loans, Inc.
107. According to Michele Sjolander’s testimony on January 25, 2012, in Kirby vs
Bank of America, N.A. US Southern District of Mississippi, Hattiesburg case number 09-CV-
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00182-DCB-JMR, she worked for Recontrust and not Countrywide Home Loans, Inc. in
2007. She further testified there were multiple stamps with her signature on them. She
testified that while she had some sort of power of attorney to allow others to use her stamps, she
didn’t know who the people using her stamp were, she was never in the same room where the
stamps were being used and didn’t have the security clearance to be in the room where her
multiple stamps were being used to endorsed notes. (Exhibit “26”) Therefore, she had no
control of stamps with her signature or personal knowledge to endorse alleged original notes for
a company she wasn’t even employed by.
108. THEREFORE, because the complaint was filed without a copy of the Note and
no officer of any involved corporation provided an affidavit stating they were in actual
possession of the note, BAC Home Loan Servicing or any party present in this matter do not
have standing and this motion to vacate should be granted in its entirety.
POINT IV
OBTAINING AN ORDER BY MISREPRESENTATION OF THE
FACTS AND FRAUD
109. The Order of Reference dated June 4, 2018, that vacated the dismissal order of
July 23, 2014, and restored the case (Exhibit “27”) was based on hearsay and evidence
withheld by counsel, Clarfield, Okon, Salmone & Pincus, PL, for the plaintiff, BAC
Home Loans Servicing, LP.
110. In New York, hearsay evidence is inadmissible unless it falls under the required
exceptions. The court Tyrrell v Wal-Mart Stores, 97 NY2d 650, 652 [2001] provided in that
regard, that “[t]he proponent of hearsay evidence must establish the applicability of a hearsay-
rule exception.”
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111. The court which rendered a judgment or order may relieve a party from it upon
such terms as may be just, if the order and/or judgment were entered following fraud,
misrepresentation, or other misconduct of an adverse party. See CPLR 5015 (a).
112. New York Judiciary Law Section 487 recognizes independent remedies for fraud
perpetrated by attorneys. Judiciary Law § 487(1) provides, inter alia, that an attorney who is
“guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive
the court or any party forfeits to the party injured treble damages, to be recovered in a civil
action.”
113. According to CPLR§5015, a party may be relieved from an order or judgment if
a motion is filed within one (1) year of order or judgment. Dennis A. Amore, Esq. of
Clarfield, Okan, Salomone & Pincus, PL, counsel for the Plaintiff, based his argument for
motioning the court to restore the case two (2) years after the Pre-Note Dismissal which is
outside the limitation period for a response on hearsay.
114. Counsel for the plaintiff, Clarfield, Okon, Salomone & Pincus, P.L.’s argument
for an “excusable default” is that counsel for the plaintiff on July 23, 2014, was not in
attendance.
115. Dennis A Amore, Esq of Clarfield, Okon, Salomone & Pincus, P.L., the second
successor counsel for the plaintiff since the Order of Dismissal was entered, purports to have
first-hand knowledge of who did or did not attend a hearing on July 23, 2014, for a law firm he
was not employed by Dennis A Amore, Esq.’s argument is hearsay and therefore, should not
have been relied upon for “excusable default” in reinstating the case. Thereby prejudicing this
court in its decision.
116. The Defendant, Ashmeen Modikhan, attended the status conference and witnessed
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an attorney present for the plaintiff. She witnessed the referee asking the plaintiff’s attorney
for the Certificate of Merit and the original note. The Defendant, Ashmeen Modikhan, witnessed
the plaintiff’s attorney stating she didn’t have it.
117. As I stated in the facts above, Rosicki, Rosicki and Associates was still counsel of
record on July 23, 2014. The Consent to Change Attorneys was signed by new counsel on
July 28, 2014, five (5) days after the status conference was held. Furthermore, the consent was
entered on August 6, 2014. Therefore, Rosicki, Rosicki and Associates was still attorney of
record and had ample time to file a Certificate of Merit as ordered by the court. However, with
the evidence presented in this motion and counsel’s lack of ability to produce any evidence
since filing the complaint, the plaintiff was never in possession of the note.
118. Plaintiff’s counsel also failed to provide this court with evidence the mortgage
and note had been assigned, sold or transferred prior to July 23, 2014, order. As stated in the
facts above, on or about June 14, 2013, the mortgage “loan” was transferred to “loan” to BofA
Merrill Lynch Asset Holdings, Inc. naming Ocwen Loan Servicing, LLC as its servicer.
Thereby prejudicing this court in its decision.
119. On or about January 5, 2017, a short order vacating the dismissal of the
case imposed on July 23, 2014, and restored this case was executed and filed on February 1,
2017(also Exhibit “18”) The execution and format of this order was not consistent with the
July 23, 2014, Order Dismissing the Action (also Exhibit “12”). On the preceding order the
judge’s full printed name is below and the paragraph format is single spaced.
120. The Short Order, in part, stated in what it believed to be as facts that “on July 23,
2014, both Plaintiff and Modikhan failed to appear, and the case was dismissed.” The court
relied on hearsay presented in the Motion to Vacate Dismissal Order and Motion to Restore.
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The case was dismissed because the plaintiff, BAC Home Loans Servicing, LP and its
counsel failed to comply with a court order to present the Note and Certificate of Merit on or
before the hearing.
121. THEREFORE, due to the misleading statements by plaintiff’s counsel,
misrepresentation of facts and omission of facts by plaintiff’s counsel leading up to the Order
of Reference and eventually, the default judgment this motion to vacate should be granted in its
entirety.
POINT V
LACK OF STANDING – MULTIPLE CLAIMS OF POSSESSION OF THE ORIGINAL
NOTE
122. After reviewing the entire file The Defendant, Ashmeen Modikhan, is going to
show no party named in this action had possession of the original April 24, 2007, note in favor
of Countrywide Home Loans, Inc. Countrywide Home Loans, Inc. claims to be in
possession of the note.
123. Standing requires an inquiry into whether a litigant has "an interest . . . in the
lawsuit that the law will recognize as a sufficient predicate for determining the issue at the
litigant’s request" See Caprer v Nussbaum, 36 AD3d 176, 182; see New York State Assn. of
Nurse Anesthetists v Nouello, 2 NY3d 207, 211; Wells Fargo Bank Minn., N.A. v Mastropaolo,
42 AD3d 239, 242). Where the issue of standing is raised by a defendant, a plaintiff must prove
its standing in order to be entitled to relief. See U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753;
Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 242).
124. In a mortgage foreclosure action, a plaintiff has standing where it is the holder
and/or assignee of the subject mortgage and the holder or assignee of the underlying note at the
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time the action is commenced. See U.S. Bank, NA. v Collymore, 68 AD3d at 753; Countrywide
Home Loans, Inc. v Gress, 68 AD3d 709, 709; Wells Fargo Bank, N.A. v Marchione, 69 AD3d
204, 207-208; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674; Federal
Nat’l. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547; First Trust Nat’l. Assn. v Meisels, 234
AD2d 414.
125. On or about January 6, 2010, BAC Home Loans Servicing, LP fka Countrywide
Home Loans Servicing, LP initiated a foreclosure and its counsel, Rosicki, Rosicki &
Counsel filed the foreclosure complaint. Thereby giving the illusion BAC Home Loans
Servicing, LP fka Countrywide Home Loans Servicing, LP has possession of the note.
126. On or about July 11, 2013, Ocwen Loan Servicing, LLC sent correspondence
that on June 14, 2013, the loan was sold to BofA Merrill Lynch Asset Holdings, Inc. Thereby
BofA Merrill Lynch Asset Holdings, Inc. claims to have possession of the note.
127. On or about July 11, 2013, and August 1, 2014, two separate “assignments” were
recorded by two separate attorneys in fact for Bank of America, N.A., successor by merger
to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP assigning
the mortgage and note to Christiana Trust, a division of Wilmington Savings Fund Society,
FSB, not in its individual capacity but as Trustee of ARLP Trust 3. Thereby Christiana Trust,
a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as
Trustee of ARLP Trust 3 claims to have possession of the note.
128. On or about May 24, 2017, Fay Servicing, LLC sent correspondence stating that
on May 19, 2017, the “mortgage loan” were sold to US Bank National Association as Legal
Title Trust for Truman 2016 SC6 Title Trust. Thereby US Bank National Association as Legal
Title Trust for Truman 2016 SC6 Title Trust claims to have possession of the note. When in
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fact they may have only bought the loan without any security interest in the collateral.
129. On page one of the Mortgage dated April 24, 2007, in favor of Countrywide Home
Loans, Inc. is a MIN (MERS identification number). The number is 1000157-0007930723-3.
130. According to the MERS ID® online look up tool, the number 1000157-
0007930723-3 is attached to a note dated April 24, 2007, which became inactive with Bank
of America, NA as the servicer and Bank of America, NA as the investor. Therefore,
Bank of America, N.A. claims to have had the note.
131. THEREFORE, because the facts prove that US Bank National Association as
Legal Title Trust for Truman 2016 SC6 Title Trust never had possession of the note and only
purchased the loan without the security interest and the motion to vacate should be granted in its
entirety.
132. This action was initiated by insufficient service, perpetuated fraud, is
representation and other misconduct by Rosicki, Rosicki and Associates, counsel for the
plaintiff, BAC Home Loans Servicing, LP.
133. New York Judiciary Law Section 487 recognizes independent remedies for fraud
perpetrated by attorneys. Judiciary Law § 487(1) provides, inter alia, that an attorney who is
“guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive
the court or any party forfeits to the party injured treble damages, to be recovered in a civil
action.”
134. As stated in the facts above, on or about January 29, 2010, twenty-three (23)
days after this action was filed, Paramount Land, Inc. created and presented a
document titled “Assignment of Mortgage” for recording in the Queens
Recorder’s office under CRFN#2010000034349. The document purports to assign the
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mortgage from MERS, Inc. as nominee of Countrywide Home Loans, Inc. to BAC Home
Loans Servicing LP fka Countrywide Home Loans Servicing, LP dated October 29, 2009, but
effective November 7, 2008. On page three of the document are the instructions to return
the document to Bank of America f/k/a Countrywide Home Loans, Inc., c/o Rosicki,
Rosicki and Associates.
135. On or about January 6, 2010, a foreclosure complaint by BAC Home
Loans Servicing, LP fka Countrywide Home Loans Servicing, LP was filed in this matter. The
complaint failed to provide a copy of the April 24, 2007, note in favor of Countrywide Home
Loans, Inc. or proof of the succession from Countrywide Home Loans, Inc. to BAC Home
Loans Servicing, LP fka Countrywide Home Loans Servicing, LP.
136. In the U.S. Southern District Court of New York case #12 cv. 7199 (JSR),
Rosicki, Rosicki and Associates and Paramount Land, Inc., its wholly owned company by
two Rosicki partners, were found guilty of multiple fraudulent crimes committed between
2009 through 2018 and fined several million dollars.
137. The fact the complaint filed by the Rosicki, Rosicki and Associates on January
6, 2010, without any evidence of its client having possession of the note, they admitted
fraudulent activity between 2009 through 2018, and an “assignment” created and recorded by
its company Paramount Land, Inc. weeks later stating the “effective date” of the assignment
being November 7, 2008 it is presumed it is reasonable to presume the “assignment” is
fraudulent and created by the foreclosing counsel to give the illusion of standing for their
case.
138. On or about June 14, 2013, the mortgage “loan” was transferred to BofA
Merrill Lynch Asset Holdings, Inc. naming Ocwen Loan Servicing, LLC as its servicer in
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correspondence from Ocwen dated July 11, 2013.
139. Plaintiff, BAC Home Loans Servicing, LP’s counsel, Rosicki, Rosicki and
Associates failed to provide this court with evidence the loan had been assigned, sold or
transferred prior to the July 23, 2014, order. Instead, they withdrew from the case and
allowed the status conference to continue without informing their successor or this court the
loan had sold to another party. This misrepresentation to the new counsel, Leopold &
Associates, prejudiced the Defendant, Ashmeen Modikhan, and biased this court in this case and
all subsequent cases.
140. On or about July 23, 2014, this case was Dismissed Pre-Note due to Plaintiff,
BAC Home Loans Servicing LP, and its counsel, Rosicki, Rosicki and Associates, failing to
present the Note or file a Certificate of Merit.
141. The withholding of the information perpetuated misrepresentation, misconduct
and fraud throughout the remainder of this case that transferred over to The Defendant,
Ashmeen Modikhan’s bankruptcy cases. Thereby prejudicing the court’s decisions and
damaging The Defendant, Ashmeen Modikhan, since 2010 to current as she is still in active
ligation because of Rosicki, Rosicki and Associates’ misconduct, misrepresentation, and
fraud on the court. The Defendant, Ashmeen Modikhan, was in an active process with Bank of
America to modify her loan before Rosicki, Rosicki and Associates filed the illegal
foreclosure. Their actions have caused irreparable damage financially and emotionally for
over a decade to the Defendant, Ashmeen Modikhan, and her children.
142. Leopold and Associates failed to do due their due diligence. Thereby
perpetuating the fraud, misrepresentation and misconduct in this case prejudicing the
court’s decision and intentionally inflicting financial, emotional, mental abuse on the
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Defendant, Ashmeen Modikhan, and her children.
143. Clarfield, Salomone & Pincus, P.L. failed to do their due diligence before filing
a Motion to Vacate the Order of Dismissal and Motion to Restore the Case that was based on
hearsay and lacked full disclosure that their client was no longer the party in possession
of the note.
144. Thereby perpetuating the fraud, misrepresentation and misconduct in this case
prejudicing the court’s decision and intentionally inflicting financial, emotional, mental
abuse on the Defendant, Ashmeen Modikhan, and her children.
145. Gross Polowy, LLC’s counsel for U.S. Bank, NA, as Legal Title Trustee for
Truman 2016 SC6 Title Trust presented a copy of a note with a rubber-stamped endorsement by
a company that was not the originator of said note. This is proven in the testimony of Michele
Sjolander, the alleged executor of the endorsement.
146. Rosicki, Rosicki and Associates knowingly and willfully committed fraud upon
this Court.
147. Leopold and Associates knowingly and willfully committed fraud upon this
Court.
148. Clarfield, Salomone & Pincus, P.L. knowingly and willfully committed fraud
upon this Court.
149. Gross Polowy, LLC knowingly and willfully committed fraud upon this Court.
150. THEREFORE, due to evidence of fraud and misrepresentation by the corporate
attorneys for the alleged owner of the note the motion to vacate should be granted in its entirety.
The case should be dismissed based on the evidence of fraud.
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POINT VI.
PLAINTIFFS LACK OF EVIDENCE OF POSSESSION OF THE FINANCIALS OF THE
DEBT
151. Plaintiff’s counsel throughout this matter only provided conclusionary
statements of what business records would show.
152. The plaintiff must prove its standing in order to be entitled to relief. See Wells Fargo
Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; TPZ Corp. v Dabbs, 25 AD3d 787, 789; see
also Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769).
153. In a mortgage foreclosure action, a plaintiff has standing where it is both the holder
and assignee of the subject mortgage and the holder or assignee of the underlying note at the time
the action is commenced. See Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674;
Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547; First Trust Natl. Assn. v Meisels,
234 AD2d 414).
154. Either a written assignment of the underlying note or the physical delivery of the
note prior to the commencement of the foreclosure action is sufficient to transfer the obligation,
or the mortgage passes with the debt as an inseparable incident. See Weaver Hardware Co. v
Solomovitz, 235 NY 321; Payne v Wilson, 74 NY 348, 354-355 [1878]; LaSalle Bank Natl. Assn.
v Ahearn, 59 AD3d 911, 912; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d at 674;
Flyer v Sullivan, 284 App Div 697, 699.
155. There are no records of payments applied, charges applied, interest calculations,
nothing to support the amount owed per the foreclosure complaint.
156. Without any proof of monies owed or paid as provided by counsel, it is
merely hearsay.
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157. THEREFORE, due to the evidence presented the motion to vacate should be
granted in its entirety.
_______________________ __________________________
XXX Date
Sworn To Before Me This
day of ,
__________________________
Notary Public
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