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PRESENT: HON. ARTHUR SCHACK JUSTICE OF THE SUPREME COURT
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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION AS PURCHASER OF THE LOANS AND OTHER ASSETS OF WASHINGTON MUTUAL BANK, FORMERLY KNOWN AS WASHINGTON MUTUAL BANK, FA (THE "SAVINGS BANK") FROM THE FEDERAL DEPOSIT INSURANCE CORPORATION, ACTING AS RECEIVER FOR THE SAVINGS BANK AND PURSUANT TO ITS AUTHORITY UNDER THE FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C. 9 1821(D),
Plaintiff,
W. BUTLER,
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papers annexed thereto, LET the plaintiff SHOW CAUSE BEFORE THE COURT, at IAS Part 27, Roo
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Upon the annexed affirmation of Yolande I. Nicholson, Esq., dated May # O1, P 1 \ and the affidavit of defendant Frederick Butler, sworn to on April 14, 201 1, and the
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ORDER TO SHOW CAUSE
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INDEX NO. 001686/2010
479, at the Courthouse thereof, 360 Adams Street, Brooklyn, New York at=
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in the aibisem on Mcrp ,201 1, or at such other time as counsel may be heard, why an
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At the IAS Motion Part,, of the Supreme Court of the State of New York, held in and for the County of Kings at the County Courthouse, 360 Adams Street, New York, New York ay of May, 20 11.
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Order should not be entered:
a) Awarding the defendant summary judgment pursuant to CPLR 3212; b) dismissing the instant lawsuit with prejudice;
and during numerous settlement conferences held by the Kings County Supreme Court between plaintiff and defendant in 2010 and 2a11 with respect to this foreclosure action
failed, to comply with the good faith requirement of CPLR 3408(f) over the aourse of
FURTHER, why an Order should not be entered that plaintiff pursued q e
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prosecution of this foreclosure action, and participated and engaged in actions
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12 months;
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pursuant to CPLR 3408 (the Settlement Confaences Before the Court in this Matter),
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FURTHER, why an Order should not be entered that plaintiff, in its coqplaint
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d) imposing sanctions against plaintiff and plaintiffs counsel and cocounsel pursuant to 22 N.Y.C.R.R. 130-1.
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c) cancelling the notice of pendency, dated January 19,20 10, filed with the Clerk of the Kipgs County Supreme Court on January 20, 20 1O(Notice of Pendency); and
constituting Settlement Conferences Before the Court in this Matter, when plaiqtiff had
full knowledge, and plaintiffs counsel knew or should have known, that plaintiff had
received payment on May 22,20 10 for the amount specified in paragraph SIXTH of its complaint dated on or about January 19,2010, as due and owing (that is, $434,382.89); FURTHER, why an Order should not be entered that plaintiff and plaintiffs
counsels made material misrepresentations to the Court, on April 14,201 1 and May 2,
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20 11, for example, thereby engaging in misconduct before the Court;
FURTHER, why this Order shall not direct, pursuant to CPLR 1006(g), that upon
execution thereof, defendant is permitted to direct the payment of the sum of the
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outstanding principal amount of the loan that appears on the records of the Kings County Clerk ($434,382.89) into the Court
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FURTHER, why this Order shall not entered that the Court shall otherwise retain
only to a party other than defendant on conditions specified by the Court;
co counsel Cullen & DykmanLLP, should not be sanctioned pursuant to New York Judiciary Law 0 487 for misstatements and misaepresentations made to the Court on May
to defendants counsel and the Court with respept to the factgand procedural hidtory of this case;
FURTHER, why Judgment should not be entered pursuant to CPLR 32111(a)(l), 321 l(a)(3), 321 l(a)(7) and 321 l(a)(8) dismissipg this foreclosure action with pqejudice;
plaintiff on the basis that plaintiffs affidavit of \facts- namely its verifwd- s
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FURTHER, why judgment should not be entered imposing sanotions against and
complaint -- contained material misrepresentations about its legal capacity to sqe, about which plaintiff had full knowledge from commencement of this; FURTHER, why a judgment should not be entered imposing sanctions against
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plaintiff, and awarding costs and attorneys fees to defendant on the basis that plaintiff withheld material information, including the May 22,20 10 payment from the Court. FURTHER, why a Judgment shall not be entered by the Court, utilizing its
equitable powers under New York law in a foreclosure action, removing any cloud on title of JPMorgan Chase Bank;this cloud has resulted in effectively preventing the
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2,20 11, to defendant during the course of 11 settlement conferences over 12 months, and
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FURTHER, why plaintiffs counsels, thG law offices of Steven J. Baum, and their
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the $434,382.89 principal amount for a period prescribed by the Court, to be released
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consummation of the pending sale of the Subjebt Premises, after having unduly
prejudiced defendants options to retain his home, and is likely to cause irreparable injury, financial and otherwise;
this proceeding or in the alternative;
FURTHER, granting to the defendant kederick Butler such other and further
reasonable counsel fees, as to this Court seems just and proper.
ORDERED THAT any title company bresent at and issuing title insurace for
the benefit of purchaser@)at the closing of the kale of the Subject Premises is hereby barred from disbursing to JPMorgan Chase Bank or to the Law 0
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. andor the Law Offices of Cullen & Dyknlan LLP the s u m of
ORDERED THAT pl
birected to provide to this Court(the
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defendants or its counsel wi
number, address and other contact information of the entity or third party that made the payment to it on May 22,20 10 that is specified in the payment history it delivered to
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NOW BE IT THEREFORE
e execution hereof, the name, teltphone
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relief as this Court deems proper, including awarding costs, disbursements, and
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FURTHER, awarding attorneys fees, costs and disbursements necessary to sustain
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ORDERED THAT, i= f
en provided by
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y title company present at and issuing title insurance for the
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1 be satisfied;
ORDERED THAT Plaintiff is barred from collectiig of the sum of
from the sale of the Subject Premises scheduled for on or about May 12,201 1, land all further actions by
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matter is barredj -
ORDERED THAT, suficient cause appearing therefor, pending the hqaring &
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on the sale of the Subject Premises, the mortgage on the records of the County Clerk to
ofthis motion or until further order ofthe court,
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' 4 1 ~directed to immediately deposit the sum o
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pursuant to CPLR 1006(g), and upon said deposit, consider, for purposes of the closing
ending sale of the Subject Premises are directed to be deposited with Court fQkpolled
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until such time as the legal owner, holder or assiglnee of the
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2007 Note and the related mortgage presents itself to the Court, upon notice to defendant, with the requisite proof of claim pursuant to CPLR 1006, whichever is sooner;
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papers upon which it was granted, by
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to the plaintiff to Steven J.
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benefit of purchaser(s) at the closing of the
ct Premises is hereby
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of this Order, and the
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4 selected for the pending purchase%onor b
and sufficient service.
e 12 day of May, 201 1,be deemed good
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