Opposition Brief — Perez v. Wells Fargo Bank Minnesota, National Ass'n

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No. 10-375

In The

Supreme Court of the Anited States

BERNICE PEREZ,

Petitioner,

VS.

WELLS FARGO BANK MINNESOTA, NATIONAL

ASSOCIATION AS TRUSTEE FOR REGISTERED

HOLDERS OF OPTION ONE MORTGAGE LOAN

TRUST 2002 ASSET BACKED CERTIFICATES

SERIES 2002-A WITHOUT RECOURSE,

Respondent.

On Petition For Writ Of Certiorari To

The Supreme Court Of The State Of New York

Appellate Division Second Judicial Department

BRIEF IN OPPOSITION

ALAN F. SUCH Esq.

FEIN, SUCH & CRANE LLP

747 Chestnut Ridge Road,

Suite 200

Chestnut Ridge, New York 10977

(845) 371-4700

afs@feinsuch.com

Counsel for Respondent

October 20, 2010

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

1. Is Petitioner entitled to a Writ of Certiorari

based on the same failed arguments involving settled

New York foreclosure law that were considered and

rejected by the State Appellate Court on more than

one occasion?

ANSWER: No.

2.. Does Petitioner present any reason whatso-

ever why this Petition should be granted under

Supreme Court Rule 10?

ANSWER: No.

CORPORATE DISCLOSURE STATEMENT

Respondent Wells Fargo Bank N.A.’s parent

corporation is Wells Fargo & Company and Wells

Fargo & Company is a publicly held corporation that

owns 10% or more of the stock of Wells Fargo Bank

N.A. Except for Wells Fargo & Company, no other

publicly held corporation owns 10% or more of the

stock of Wells Fargo Bank N.A.

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS

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CORPORATE DISCLOSURE STATEMENT ....... il

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TABLE OF AUTHORITIES ...................0....0.0.0085. iv

STATEMENT OF THE CASE.............................. 1

REPLY TO STATEMENT OF FACTS................... 2

REASON WHY THE PETITION MUST BE

acc icerassesvevecestasévassecstouscsesevsvesccssenss 3

THE STATE TRIAL COURT PROPERLY

GRANTED AND THE STATE APPELLATE

COURT PROPERLY AFFIRMED THE JUDG-

MENT OF FORECLOSURE AND SALE;

THERE ARE NO COMPELLING REASONS

TO GRANT THIS PETITION......................00.06. 3

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TABLE OF AUTHORITIES

Page

CASES

Collins v. Bertram Yacht Corp., 42 N.Y.2d 1033,

399 N.Y.S.2d 202 (1977)......ccscessccseees. iaciniiceukenipensealle 4

First Federal Savings Bank v. Midura, 264

A.D.2d 407, 694 N.Y.S.2d 121 (1999) .................:000005

EMC Mortgage Corp. v. Stewart, 2 A.D.2d 772,

FED IN. TAD GOS (BOOB). ccccrccscccsovccvccovcsesseeccensessevesonet

HSBC Bank USA v. Dammond, 59 A.D.3d 679

CRE Es I Pi cnccécectnccscbenesckscvcsscereinucvatentetsieousvesou

243 West 98th Condominium v. Shapiro, 12

A.D.3d 591, 786 N.Y.S.2d 67 (2nd Dept.

SITE cs ncnscusendvussanssisiireiucahcssasphouvoabeckialecematintcninand ined 4

Wells Fargo Bank Minnesota NA v. Mastro-

paolo, 42 A.D.3d 239 (2nd Dept. 2007).....................5

RULES

Supreme Court Rutle 10 .........ccccccscsccrscscscsscsesssvcvvovesccoee 6

STATEMENT OF THE CASE

Petitioner is petitioning for a Writ of Certiorari

based upon her (repeatedly) failed appeal from a New

York state court Judgment of Foreclosure and Sale.

The two cornerstones of Petitioner’s Petition (buried

amid her stream of consciousness attack on the char-

acter of Respondent and anyone remotely connected

with it) are her relentless attack on her default under

the mortgage claimed by Respondent and an alleged

lack of standing on the part of Respondent.

The simple fact is, Petitioner defaulted under the

mortgage and then under a repayment plan that at-

tempted to address her mortgage arrears. Respondent

filed this foreclosure action as was its right under

New York law and Petitioner filed a contesting

Answer. However, Petitioner did not raise a lack of

standing on the part of Plaintiff as an Affirmative

Defense, nor did she file a pre-answer motion to

dismiss on that ground, thus effectively waiving that

defense under New York law.

The state Trial Court and the Second Depart-

ment and the Court of Appeals ruled in Respondent’s

favor.

There is no reason whatsoever to grant this

Petition involving a 2003 foreclosure case.

REPLY TO STATEMENT OF FACTS

Petitioner Bernice Perez (“Petitioner”) is peti-

tioning this Honorable Court for a Writ of Certiorari

seeking relief from the state Trial Court’s September

24, 2008 Judgment of Foreclosure and Sale and the

affirming thereof by the Supreme Court of New York

Appellate Division, Second Department and the New

York Court of Appeals.

This is an action commenced on July 17, 2003 to

foreclose a $292,000 first purchase money mortgage

given by Petitioner on real property commonly known

as 45 Oakland Avenue, Mount Vernon, NY 10552.

Petitioner filed a contesting Answer. However,

Petitioner did not raise a lack of standing on the part

of Plaintiff as an Affirmative Defense. Petitioner did

not file a pre-answer motion to dismiss on that

ground.

Respondent was granted Summary Judgment

striking Petitioner’s contesting Answer and dismiss-

ing her affirmative defenses on December 16, 2005.

On January 13, 2006, Petitioner appealed from

the Trial Court’s Order granting Summary Judge-

ment.

By decision and Order dated June 12, 2007, the

Appellate Division, Second Department affirmed the

Trial Court's granting of Summary Judgment to

Respondent. (Appendix G page 108) Petitioner did not

seek reconsideration of this Order nor take any

further appeal from same.

Respondent was granted a Judgment of Fore-

closure and Sale on September 24, 2008. (Appendix K

page 123)

On October 21, 2008, Petitioner appealed from

the Trial Court’s September 24, 2008 Judgment of

Foreclosure and Sale. The Appellate Division, Second

Department, in an opinion dated February 9, 2010,

affirmed the Judgment of Foreclosure and Sale. The

Second Department specifically rejected Petitioner’s

claims of lack of standing and lack of service of

process. (Appendix O page 184)

Petitioner moved for leave to appeal to the Court

of Appeals for the State of New York from the Second

Department decision. Petitioner’s Motion was denied

by Order dated May 6, 2010. (Appendix P page 229)

Petitioner now is petitioning this Court for a Writ

of Certiorari.

REASON WHY THE

PETITION MUST BE DENIED

THE STATE TRIAL COURT PROPERLY

GRANTED AND THE STATE APPELLATE

COURT PROPERLY AFFIRMED THE JUDG-

MENT OF FORECLOSURE AND SALE; THERE

ARE NO COMPELLING REASONS TO GRANT

THIS PETITION.

Petitioner is petitioning for a Writ of Certiorari

based upon her (repeatedly) failed appeal from a New

York state court Judgment of Foreclosure and Sale.

The two cornerstones of Petitioner’s Petition (buried

amid her stream of consciousness attack on the char-

acter of Respondent and anyone remotely connected

with it) are her relentless attack on her default under

the mortgage claimed by Respondent and an alleged

lack of standing on the part of Respondent.

Petitioner’s attack on her default under the mort-

gage was the subject of a Motion for Summary Judg-

ment by Respondent which was granted by the state

Trial Court.

The grant of Summary Judgment is the proce-

dural equivalent of a trial and results in a final

judgment on the merits. Collins v. Bertram Yacht

Corp., 42 N.Y.2d 1033, 399 N.Y.S.2d 202 (1977).

Petitioner has had her “trial”. She lost.

Petitioner appealed from the Order for Summary

Judgment. She lost.

The above undeniable facts proved fatal to Peti-

tioner’s appeal to the New York Appellate Division

Second Department as a matter of law. 243 West 98th

Condominium v. Shapiro, 12 A.D.3d 591, 786

N.Y.S.2d 67 (2nd Dept. 2004). Petitioner raised the

same failed arguments on appeal to the Second

Department regarding her contention that she did

not default under the mortgage that were already

considered and rejected by the Appellate Court in her

prior appeal to that very Court.

Petitioner is sti/] attempting to jump on the

standing bandwagon after having litigated this

matter for almost six years and without having raised

this defense in her Answer or in a pre-answer motion

to dismiss before the state Trial Court. This undeni-

able fact was fatal to her appeal as a matter of New

York state law, as Petitioner had effectively waived

this defense. Wells Fargo Bank Minnesota NA ov.

Mastropaolo, 42 A.D.3d 239 (2nd Dept. 2007); HSBC

Bank USA v. Dammond, 59 A.D.3d 679 (2nd Dept.

2009).

When a mortgagor defaults on loan payments,

even if only for a day, a mortgagee may accelerate the

loan, require that the balance be tendered or com-

mence foreclosure proceedings and equity will not

intervene. First Federal Savings Bank v. M:dura, 264

A.D.2d 407, 694 N.Y.S.2d 121 (1999). Once a mort-

gagor’s default has been declared and the mortgage

loan accelerated, the mortgayee is not required to

accept a tender of less than full repayment as de-

manded. Id.; EMC Mortgage Corp. v. Stewart, 2

A.D.2d 772, 769 N.Y.S.2d 408 (2003).

The simple fact is, Petitioner defaulted under the

mortgage and then under a repayment plan that

attempted to address her mortgage arrears. The Trial

Court and the Appellate Court have already ruled in

Respondent’s favor in this regard.

Petitioner’s desperate attempt to raise lack of

standing as a defense was and remains frivolous as a

matter of New York law.

A Petition for a Writ of Certiorari shall be grant-

ed “only for compelling reasons.” Supreme Court Rule

10. Petitioner does not even suggest the existence of

any of the reasons set forth in Supreme Court Rule

10(a)(b) or (c).

There is no reason whatsoever to grant this

Petition involving a 2003 foreclosure case.

CONCLUSION

Based on all the foregoing, it is respectfully

submitted that the Petition must be denied.

Respectfully submitted,