PETITION FOR INJUNCTIVE RELIEF

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

…………………………………………………X

US BANK, NA, AS LEGAL TITLE Index No: 301/2010

TRUSTEE FOR TRUMAN 2016 SC6 TITLE 705854/2021

TRUST,

Plaintiff Hon. Phillip Hom

-against-

ASHMEEN MODIKHAN, et al., PETITION FOR INJUNCTIVE

RELIEF

Defendants

………………………………………………………………….X

COMES NOW Defendant Ashmeen Modikhan, and files this petition against the Plaintiff and in support thereof, Defendant states as follows:

Defendant is an adult of sound mind.
Defendant is a resident of the State of New York.
Defendant is the owner of the property located at: 87-10 149^th Avenue, Unit 5N, Howard Beach, New York
Defendant was subjected to foreclosure proceedings in this Honorable Court, for the said property. The court entered judgment in favor of the Plaintiff in the cases. However, Defendant has challenged the foreclosure judgment.
On March 27, 2023, Plaintiff, through Friedman Vartolo LLP, sent Defendant a Ten Day Notice to Quit. Said notice gave Defendant ten days to vacate the said property, under the threat of eviction proceedings. Plaintiff also sent Defendant a Ninety Day Notice to Quit.
Defendant therefore files this Petition to Seek an Injunction preventing the Plaintiff from evicting Defendant from the property pending determination of all cases relating to the illegal foreclosure of the property.
There is a likelihood of ultimate success on the merits of Defendant’s appeal(s) and/or challenge to the foreclosure judgment.
Notably, Defendant asserts that the foreclosure judgment was fraudulently obtained. Defendant is therefore challenging the decision of this court, which granted an order to foreclose the property.
First, to bring a foreclosure action in NY, plaintiff must own both the mortgage and note at the inception of the action; Deutsche Bank National Trust Company v. Barnett, 88 A.D.3d 636, 931 N.Y.S.2d 630, 2011 WL 4600619 (2d Dep’t 2011) (“plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced). In America’s Wholesale Lender v. Gail M. Pagano et al., 24447, 2005, the Court ruled in favor of the borrower because the plaintiff was not the lender named in the note.
In the instant case, the Plaintiff did not own the mortgage and the note as provided for in said law. Besides, there was no chain of possession evidenced by the Plaintiff throughout the course of the foreclosure proceedings. Notably, when the Plaintiff filed this case on January 6, 2010, by 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. These proceedings were therefore based on constant lies as to the owner of the original note.
Next, for an assignee of a mortgage loan to have standing to foreclose, the assignment must be complete when the action is commenced. Ownership of the note and mortgage may be established by the lending documents themselves, or by assignment. Deutsche Bank Nat. Trust Co. v. McRae, 27 Misc.3d 247, 894 N.Y.S.2d 729 (N.Y.Sup. 2010)
In the instant case, on or about January 29, 2010, Paramount Land, 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. 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. 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. 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.
It is notable that in LaSalle Bank National Association v. Lamy, 12 Misc.3d 1191(A), 824 N.Y.S.2d 769 (Sup. Ct. Nassau Cty 2006), the court held that because MERS had no ownership interest in the note and the mortgage, an assignment from MERS was ineffective to pass title to the foreclosing lender. See also U.S. Bank, N.A. v. Collymore, 68 A.D. 2d 752, 890 N.Y.S.2d 578 (2d Dep’t 2009) (incomplete and conflicting evidence insufficient to establish that MERS effectively assigned the note to plaintiff prior to the action
Also, on April 26, 2023, the Consumer Financial Protection Bureau (CFPB) issued Guidance to Protect Homeowners from Illegal Collection Tactics on Zombie Mortgages. The advisory opinion clarifies that a covered debt collector who brings or threatens to bring a state court foreclosure action to collect a time-barred mortgage debt may violate the Fair Debt Collection Practices Act and its implementing regulation. A time-barred debt is one whose statute of limitations has expired. The CFPB noticed that debt collectors were attempting to foreclose on mortgages that may be unenforceable in court. Defendant in this case asserts that the Plaintiff attempts to collect an unenforceable mortgage, whose time limitation has passed. Besides, as already averred above, the Plaintiff has produced no evidence of standing to enforce the mortgage.
Defendant has no adequate remedy at law for the said harassment from the notice(s).
Unless this court, by issuing injunctive relief, orders and directs Plaintiff from making any further communication to Defendant, Defendant will suffer, and will continue to suffer irreparable loss, injury, and damages.
For a long time now, Defendant has been subjected to a lot of harm as she tried to pursue justice and protect her property rights. Notably, by the beginning of 2020, the Defendant was suffering from severe At this moment, she is 100% permanently disabled because of her serious injuries sustained at her former place of employment. Her children are also suffering from the endless litigation, and their corresponding effects and cost implications. It follows; the irreparable injuries to be sustained by Defendant is more burdensome to her than any harm (if any, and there is none) caused to Plaintiff through imposition of the requested injunctive relief.

WHEREFORE, Defendant requests that the court issues an injunctive relief against the Plaintiff enjoining the Plaintiff to stop any further conduct and/or communication to Defendant, and to stop enforcing their notice(s) to quit and/or vacate, until Defendant concludes the appeals of the foreclosure judgment, and that Defendant recovers costs, and have such other and further relief as this court deems just.

Dated: _______________

Respectfully submitted,

___________________________

ASHMEEN MODIKHAN

CERTIFICATE OF MAILING

I, ASHMEEN MODIKHAN, certified on this ______day of ________ 2023, I deposited a true copy of the above to the Plaintiff, by placing the documents with prepaid postage in the United States mailbox address(es):

Franklin K. Chui

Friedman Vartolo LLP

85 Broad Street, Suite 501

New York, NY 10004

fchiu@friedmanvartolo.com

Patricia M. Lattanzio

Friedman Vartolo LLP

85 Broad Street, Suite 501

New York, NY 10004

plattanzio@friedmanvartolo.com

Michael Nardolillo

Friedman Vartolo LLP