SUPREME COURT OF THE STATE OF XXX
COUNTY OF XXX
_____________________________________
XXX MORTGAGE, LLC.,
Plaintiff,
v.
XXX, et al,
Defendant.
Index No. XXX
XXX
OPPOSITION TO PLAINTIFF’S MOTION TO APPOINT A SUCCESSOR REFERREE
AND AMEND CASE CAPTION
COMES NOW Defendant XXX (hereinafter “Defendant”), and files
this opposition to Plaintiff’s Motion to Appoint Successor Referee and Amend Case Caption
(hereinafter “the motion”). In support thereof, the Defendant state as follows:
In the Plaintiff’s motion, attorney XXX LLP alleged that they
represented the Plaintiff in the captioned case. The Plaintiff also prayed for an Order substituting
Plaintiff XXX MORTGAGE, LLC” with “U.S. Bank Trust National Association, as
Trustee of Dwelling Series IV Trust.” The Plaintiff also prayed for an Order dismissing Luther V.
Dye, Esq., from his duties as Referee. Lastly, the Plaintiff averred that the previous foreclosure
order remains in full force.
ARGUMENTS
i. Plaintiff’s suggested servicer does not have a direct stake in the litigation.
"A servicer is a party in interest in proceedings involving loans which it services. The
Bankruptcy Code and Rule 17 of the Federal Rules of Procedure allow a party to appear as long as
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it has a direct stake in the litigation under the particular circumstances." (Emphasis added). See In
re Conde-Dedonato, 391 B.R. 247, 250 (Bankr. E.D.N.Y. 2008).
In the instant action, .S. Bank Trust National Association, as Trustee of Dwelling Series IV
Trust does not have any direct interest in the case under the prevailing circumstances. Notably,
from this case’s inception, the servicer is, and has been NATIONSTAR MORTGAGE, LLC.
Therefore, the Plaintiff’s intention to change the servicer should be denied since the new servicer
lacks any direct stake in the litigation.
ii. Friedman Vartolo LLP is not the Plaintiff’s attorney
According to New York CPLR § 321(b)(1), an attorney of record may be changed by filing
with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged
by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the
action or, if a party appears without an attorney, to the party.
Courts have strictly interpreted § 321(b)(1) to require both filing with the court and notice to
all parties in order to ensure proper representation and transparency in the litigation process. Hess v.
Tyszko, 46 A.D.2d 980, 980, 362 N.Y.S.2d 287 (N.Y. Sup.Ct.App. Div.3d Dep’t 1974) (“Until an
attorney of record is discharged in the manner provided by law [in CPLR § 321(b) ] …, the attorney
[of record] represents the party [and] service of papers upon the attorney is service upon the
party….”); Eveready Ins. Co. v. DeLeon, 287 A.D.2d 536, 537, 731 N.Y.S.2d 642 (2d Dep’t 2001)
(“Because the appellant was not in receipt of a duly-executed consent to change attorney form or
court order substituting counsel in accordance with CPLR 321, it was proper to mail the notice of
disclaimer to the attorney of record.”). “Until an attorney of record withdraws or is changed or
discharged in the manner prescribed by CPLR 321, his authority as attorney of record for his client
continues, as to adverse parties, unabated … This principle has generally been applied to afford
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protection to adverse parties, by eliminating disputes and uncertainty as to whether and when the
authority of an attorney representing an opponent terminated.” Moustakas v. Bouloukos, 112
A.D.2d 981, 983, 492 N.Y.S.2d 793 (2d Dep’t 1985) (citations omitted); accord. Eveready Ins. Co.
v. DeLeon, 287 A.D.2d 536, 537, 731 N.Y.S.2d 642 (2d Dep’t 2001); Candeloro v. Candeloro, 133
A.D.2d 731, 732, 520 N.Y.S.2d.
In the instant action, the Plaintiff did not duly file a notice of the change of an attorney, as
required by the law. Therefore, Plaintiff’s allegation that it is represented by Friedman Vartolo LLP
does not stand. It follows; any and all documents filed by the said attorney are null and void.
iii. SN Servicing is inapplicable since a Fraudulent Motion for Default Judgment is
entered in the case
In this case, a foreclosure action was filed in this Court relating to a mortgage loan taken by
Ashmeen Modikhan on November 21, 2005 in the amount of $400,000.
On or about May 2, 2019 and January 21, 2020, Justice Lancman issued a Judgment of
Foreclosure and Sale and Amended Judgment of Foreclosure and Sale, respectively.
Defendant avers that the default judgment was entered fraudulently. Defendant has
challenged the said decision.
Accordingly, since the default judgment was entered fraudulently, Defendant avers that SN
Servicing is inapplicable in that regard.
WHEREFORE, due to the foregoing averments, the Plaintiff’s Motion to Appoint
Successor Referee and Amend Case Caption should be denied in its entirety.
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Respectfully,
____________________ ___________________
XXX Date
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CERTIFICATE OF SERVICE
I certify that a copy of this Opposition was served on [ENTER DATE] to the Plaintiff in this
action.
____________________ ___________________
XXX Date
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