Preview
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
Carrington Mortgage Services, LLC,
AFFIRMATION
Plaintiff, IN OPPOSITION
- against - Index No. EF2023-1051
Nancy Braverman; Bank of America, N.A., Motion Seq. No. 003
Defendants.
Ellis M. Oster, Esq., an attorney at law, duly admitted to practice before the Courts of the
State of New York, hereby affirms pursuant to CPLR § 2106 that:
1. I am a senior associate of LOGS Legal Group LLP, the attorneys of record for
Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying
this action.
2. I respectfully submit this affirmation in opposition to the order to show cause, dated
April 30, 2024, and filed on behalf of Defendant, Nancy Braverman (“Defendant”), which seeks
an Order to stay the foreclosure sale in this action.
3. For the reasons set forth below, Defendant’s order to show cause should be denied.
4. First, the foreclosure sale scheduled for June 3, 2024 was cancelled due to the
temporary restraining order contained in the instant order to show cause, so Defendant’s request
to cancel that sale date should be denied as moot.
5. Second, while Defendant’s counsel suggests in footnote 1 of his affirmation that a
settlement conference should have been held pursuant to CPLR 3408, Plaintiff maintains that as
the sole borrower, Gary Braverman, is deceased, that no such settlement conference was required.
See Wilmington Sav. Fund Socy., FSB v. Marrero, 2022 NY Slip Op 31470[U] (Sup Ct, NY
22-091496
1 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
County 2022); Deutsche Bank Natl. Trust Co. v Hollie Miller As Heir to the Estate of Barbara C.
Miller, 2022 N.Y. Misc. LEXIS 3137, at *1-2 (Sup Ct, Suffolk County Mar. 25, 2022, No.
623023/2019) (“And this is not a home loan as defined in RPAPL § 1304, because the borrower
is deceased. Pursuant to CPLR § 3408, a settlement conference is not required.”); Bayview Loan
Servicing LLC v Susan J. Triolo As Ex'x of the Estate of Joyce R. Eliazo, 2020 N.Y. Misc. LEXIS
13142, at *2 (Sup Ct, Suffolk County Feb. 27, 2020, No. 609775/2019) (“And that this is not a
home loan as defined in RPAPL § 1304, because the borrower is deceased. Therefore, pursuant
to CPLR § 3408, a settlement conference is not required”).
6. Indeed, as Defendant became the sole owner of the subject premises upon the
borrower’s death, which her counsel admits at paragraph 3 of his affirmation, and Defendant’s
ownership interests are subject and subordinate to Plaintiff’s previously recorded mortgage, then
Plaintiff elected to waive any deficiency liability as against the deceased borrower’s estate to avoid
having to name any estate representative as a party defendant in this case, realizing that any estate
representative would have been merely a permissible party defendant for deficiency judgment
purposes pursuant to RPAPL § 1313, as opposed to being a necessary party defendant to this action
pursuant to RPAPL § 1311.
7. Be that as it may, Defendant’s order to show cause does not seek to vacate the final
Judgment of Foreclosure and Sale in this case, rendering her counsel’s arguments on this issue to
be moot and irrelevant, and regardless, “nor would the failure to conduct such a conference, even
if required, give rise to a claim for vacatur [of the judgment of foreclosure and sale] by depriving
the court of subject matter jurisdiction”. Marcon Affiliates, Inc. v. Ventra, 112 A.D.3d 1095, 1096
(3d Dept. 2013), citing Pritchard v. Curtis, 101 A.D.3d 1502, 1504 (3d Dept. 2012).
22-091496
2 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
8. Third, as for staying the foreclosure sale any further in order to give Defendant even
more time to sell the property in order to payoff the mortgage loan, “[i]t is vital to recognize that
defendant is simply not entitled to a stay or any other relief. [The deceased borrower’s estate]
defaulted on the mortgage and [Defendant] has no legally valid defenses to the action.” Bruce J.
Bergman, Bergman on New York Mortgage Foreclosure § 22.12 (2011).
9. Defendant has not presented any valid grounds for a further stay, injunction or
temporary restraining order under any of the applicable statutes, namely CPLR § 2201 and CPLR
Article 63. Absent any showing that said statutes apply, the request for an additional stay of the
foreclosure sale must be denied.
10. At the present time, Plaintiff has not been made whole, and therefore, Plaintiff is
fully entitled to proceed with the foreclosure sale, as a matter of law. See Graf v. Hope Bldg.
Corp., 254 N.Y. 1 (1930); Wells Fargo Bank, N.A. v. Meyers, 2013 NY Slip Op 3085 (2d Dept.
2013); Emigrant Mortg. Co., Inc. v. Fisher, 90 A.D.3d 823, 935 N.Y.S.2d 313 (2d Dept 2011);
IndyMac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2d Dept. 2010); JP
Morgan Chase Bank, N.A. v. Ilardo, 940 N.Y.S.2d 829 (Sup. Ct., Suffolk Cty. 2012); U.S. Bank
National Assoc. v. Fields, 2012 NY Slip Op 32204U (Sup. Ct., Suffolk Cty. 2012); Wells Fargo
Bank v. Small, 2010 NY Slip Op 30424U (Sup. Ct., Queens Cty. 2010).
11. As set forth in the leading treatise involving New York State mortgage foreclosure
actions, “Defendant wishes to delay the foreclosure, an understandable and not uncommon tactic,
but solely on the baseless ground that a sale of the mortgaged premises may be contemplated. It
may be that such is the intention, though even if there actually was a contract to sell [] even this is
not an assurance that there will ever be a closing for myriad obvious reasons well known to the
Court. Significantly, defendant can point to no case law for the proposition that foreclosure can
22-091496
3 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
be intercepted because the defaulting mortgagor intends to sell the property, has a contract to do
so, or even has a closing date. Indeed, there is case law for the proposition that a property owner’s
hope to advantageously sell the property to a third party is not a defense to foreclosure.” 2
Bergman on New York Mortgage Foreclosures § 22.32 (2018), citing Bank of New York v.
Agenor, 305 A.D.2d 438, 758 N.Y.S.2d 817 (2d Dept. 2003), citing Nassau Trust Co. v. Montrose
Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265.
12. “If ever there will be a closing, there is an absolute right to redeem the mortgage,
that is, pay it in full, and plaintiff will be delighted to receive payment of such sum. To be made
whole is plaintiff’s sole goal. This, of course, is why the remedy of foreclosure exists. In the
meanwhile, plaintiff has every right to proceed with the foreclosure unimpeded by defendant’s
unavailing posture.” Id.
13. Such is particularly true where, as here, Defendant is not even personally liable for
the underlying mortgage debt, and the mortgage loan has been in default since the monthly
mortgage installment due for November 1, 2020, meaning that Defendant had 2 ½ years to exercise
her right of redemption before the case at bar was even commenced on May 9, 2023 and then
another year to exercise same during the pendency of this case.
14. “It is elementary that a final judgment or order represents a valid and conclusive
adjudication of the parties' substantive rights...” Da Silva v. Musso, 76 N.Y.2d 436, 440 (1990).
15. “'[A] judgment of foreclosure and sale entered against a defendant is final as to all
questions at issue between the parties, and all matters of defense which were or might have been
litigated in the foreclosure action are concluded' (NAB Asset Venture IV, LLP v Orangeburg
Equities, 19 AD3d 565, 565, 796 NYS2d 536 [2005], quoting Green Point Sav. Bank v Clarke,
22-091496
4 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
220 AD2d 384, 385, 631 NYS2d 888 [1995]).” TD Bank, N.A. v Talia Props., Inc., 110 A.D.3d
1057, 1057-1058 (2d Dept. 2013).
16. “Whether prescription goes only to the remedy or extinguishes the right, it affects
the jurisdiction no more than any other defense. When a court has general jurisdiction to try the
question whether an alleged right exists the rules that determine the existence of the right ordinarily
govern the duty only of the court, not its power. Its judgment that the right is established cannot
be impeached collaterally by proof that the judgment was wrong.” Burnet v. Desmornes, 226 U.S.
145, 147 (1912).
17. “Considerations of judicial economy as well as fairness to the parties mandate, at
some point, an end to litigation. Afterthoughts or after discoveries however understandable and
morally forgivable are generally not enough to create a right to litigate anew.” Reilly v. Reid, 45
N.Y.2d 24, 28 (1978).
18. Based upon the foregoing, Defendant’s order to show cause should be denied in all
respects and in its entirety, as a matter of law and fact.
22-091496
5 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
WHEREFORE, it is respectfully requested that Defendant’s pending order to show cause
be denied in all respects and in its entirety; and such other and further relief as to the Court may
seem just and proper.
I affirm this 10th day of May, 2024, under the penalties of perjury under the laws of New
York, which may include a fine or imprisonment, that the foregoing is true, and I understand that
this document may be filed in an action or proceeding in a court of law.
_________________________________
Ellis M. Oster, Esq.
Senior Associate, Director of Litigation
LOGS LEGAL GROUP LLP
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
To: Joshua N. Koplovitz, Esq.
WAPNER KOPLOVITZ & FUTERFAS, PLLC
Attorneys for Defendant, Nancy Braverman
239 Wall Street
Kingston, New York 12401
Served via e-filing
22-091496
6 of 7
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024
ATTORNEY'S CERTIFICATION
I, Ellis M. Oster, am an attorney duly admitted to the practice of law in the State of New
York. I am a senior associate of LOGS Legal Group LLP, the attorneys for the Plaintiff, Carrington
Mortgage Services, LLC, in the above captioned civil action.
I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator (22
NYCRR), to the best of my knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, that the presentation of the papers in this action checked below, or the
contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of the Rules of the
Chief Administrator (22 NYCRR):
{ } Summons & Complaint
{ } Answer or Reply
{ } Attorney Affirmation
{X} Other: Affirmation in Opposition
Word Count: The total number of words in this affirmation, exclusive of the caption,
signature block, and this Attorney’s Certification statement page is 1,499.
DATED: May 10, 2024
________________________
Ellis M. Oster, Esq.
Senior Associate, Director of Litigation
LOGS LEGAL GROUP LLP
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
7 of 7
Preview
FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER Carrington Mortgage Services, LLC, AFFIRMATION Plaintiff, IN OPPOSITION - against - Index No. EF2023-1051 Nancy Braverman; Bank of America, N.A., Motion Seq. No. 003 Defendants. Ellis M. Oster, Esq., an attorney at law, duly admitted to practice before the Courts of the State of New York, hereby affirms pursuant to CPLR § 2106 that: 1. I am a senior associate of LOGS Legal Group LLP, the attorneys of record for Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying this action. 2. I respectfully submit this affirmation in opposition to the order to show cause, dated April 30, 2024, and filed on behalf of Defendant, Nancy Braverman (“Defendant”), which seeks an Order to stay the foreclosure sale in this action. 3. For the reasons set forth below, Defendant’s order to show cause should be denied. 4. First, the foreclosure sale scheduled for June 3, 2024 was cancelled due to the temporary restraining order contained in the instant order to show cause, so Defendant’s request to cancel that sale date should be denied as moot. 5. Second, while Defendant’s counsel suggests in footnote 1 of his affirmation that a settlement conference should have been held pursuant to CPLR 3408, Plaintiff maintains that as the sole borrower, Gary Braverman, is deceased, that no such settlement conference was required. See Wilmington Sav. Fund Socy., FSB v. Marrero, 2022 NY Slip Op 31470[U] (Sup Ct, NY 22-091496 1 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 County 2022); Deutsche Bank Natl. Trust Co. v Hollie Miller As Heir to the Estate of Barbara C. Miller, 2022 N.Y. Misc. LEXIS 3137, at *1-2 (Sup Ct, Suffolk County Mar. 25, 2022, No. 623023/2019) (“And this is not a home loan as defined in RPAPL § 1304, because the borrower is deceased. Pursuant to CPLR § 3408, a settlement conference is not required.”); Bayview Loan Servicing LLC v Susan J. Triolo As Ex'x of the Estate of Joyce R. Eliazo, 2020 N.Y. Misc. LEXIS 13142, at *2 (Sup Ct, Suffolk County Feb. 27, 2020, No. 609775/2019) (“And that this is not a home loan as defined in RPAPL § 1304, because the borrower is deceased. Therefore, pursuant to CPLR § 3408, a settlement conference is not required”). 6. Indeed, as Defendant became the sole owner of the subject premises upon the borrower’s death, which her counsel admits at paragraph 3 of his affirmation, and Defendant’s ownership interests are subject and subordinate to Plaintiff’s previously recorded mortgage, then Plaintiff elected to waive any deficiency liability as against the deceased borrower’s estate to avoid having to name any estate representative as a party defendant in this case, realizing that any estate representative would have been merely a permissible party defendant for deficiency judgment purposes pursuant to RPAPL § 1313, as opposed to being a necessary party defendant to this action pursuant to RPAPL § 1311. 7. Be that as it may, Defendant’s order to show cause does not seek to vacate the final Judgment of Foreclosure and Sale in this case, rendering her counsel’s arguments on this issue to be moot and irrelevant, and regardless, “nor would the failure to conduct such a conference, even if required, give rise to a claim for vacatur [of the judgment of foreclosure and sale] by depriving the court of subject matter jurisdiction”. Marcon Affiliates, Inc. v. Ventra, 112 A.D.3d 1095, 1096 (3d Dept. 2013), citing Pritchard v. Curtis, 101 A.D.3d 1502, 1504 (3d Dept. 2012). 22-091496 2 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 8. Third, as for staying the foreclosure sale any further in order to give Defendant even more time to sell the property in order to payoff the mortgage loan, “[i]t is vital to recognize that defendant is simply not entitled to a stay or any other relief. [The deceased borrower’s estate] defaulted on the mortgage and [Defendant] has no legally valid defenses to the action.” Bruce J. Bergman, Bergman on New York Mortgage Foreclosure § 22.12 (2011). 9. Defendant has not presented any valid grounds for a further stay, injunction or temporary restraining order under any of the applicable statutes, namely CPLR § 2201 and CPLR Article 63. Absent any showing that said statutes apply, the request for an additional stay of the foreclosure sale must be denied. 10. At the present time, Plaintiff has not been made whole, and therefore, Plaintiff is fully entitled to proceed with the foreclosure sale, as a matter of law. See Graf v. Hope Bldg. Corp., 254 N.Y. 1 (1930); Wells Fargo Bank, N.A. v. Meyers, 2013 NY Slip Op 3085 (2d Dept. 2013); Emigrant Mortg. Co., Inc. v. Fisher, 90 A.D.3d 823, 935 N.Y.S.2d 313 (2d Dept 2011); IndyMac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2d Dept. 2010); JP Morgan Chase Bank, N.A. v. Ilardo, 940 N.Y.S.2d 829 (Sup. Ct., Suffolk Cty. 2012); U.S. Bank National Assoc. v. Fields, 2012 NY Slip Op 32204U (Sup. Ct., Suffolk Cty. 2012); Wells Fargo Bank v. Small, 2010 NY Slip Op 30424U (Sup. Ct., Queens Cty. 2010). 11. As set forth in the leading treatise involving New York State mortgage foreclosure actions, “Defendant wishes to delay the foreclosure, an understandable and not uncommon tactic, but solely on the baseless ground that a sale of the mortgaged premises may be contemplated. It may be that such is the intention, though even if there actually was a contract to sell [] even this is not an assurance that there will ever be a closing for myriad obvious reasons well known to the Court. Significantly, defendant can point to no case law for the proposition that foreclosure can 22-091496 3 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 be intercepted because the defaulting mortgagor intends to sell the property, has a contract to do so, or even has a closing date. Indeed, there is case law for the proposition that a property owner’s hope to advantageously sell the property to a third party is not a defense to foreclosure.” 2 Bergman on New York Mortgage Foreclosures § 22.32 (2018), citing Bank of New York v. Agenor, 305 A.D.2d 438, 758 N.Y.S.2d 817 (2d Dept. 2003), citing Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265. 12. “If ever there will be a closing, there is an absolute right to redeem the mortgage, that is, pay it in full, and plaintiff will be delighted to receive payment of such sum. To be made whole is plaintiff’s sole goal. This, of course, is why the remedy of foreclosure exists. In the meanwhile, plaintiff has every right to proceed with the foreclosure unimpeded by defendant’s unavailing posture.” Id. 13. Such is particularly true where, as here, Defendant is not even personally liable for the underlying mortgage debt, and the mortgage loan has been in default since the monthly mortgage installment due for November 1, 2020, meaning that Defendant had 2 ½ years to exercise her right of redemption before the case at bar was even commenced on May 9, 2023 and then another year to exercise same during the pendency of this case. 14. “It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights...” Da Silva v. Musso, 76 N.Y.2d 436, 440 (1990). 15. “'[A] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded' (NAB Asset Venture IV, LLP v Orangeburg Equities, 19 AD3d 565, 565, 796 NYS2d 536 [2005], quoting Green Point Sav. Bank v Clarke, 22-091496 4 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 220 AD2d 384, 385, 631 NYS2d 888 [1995]).” TD Bank, N.A. v Talia Props., Inc., 110 A.D.3d 1057, 1057-1058 (2d Dept. 2013). 16. “Whether prescription goes only to the remedy or extinguishes the right, it affects the jurisdiction no more than any other defense. When a court has general jurisdiction to try the question whether an alleged right exists the rules that determine the existence of the right ordinarily govern the duty only of the court, not its power. Its judgment that the right is established cannot be impeached collaterally by proof that the judgment was wrong.” Burnet v. Desmornes, 226 U.S. 145, 147 (1912). 17. “Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. Afterthoughts or after discoveries however understandable and morally forgivable are generally not enough to create a right to litigate anew.” Reilly v. Reid, 45 N.Y.2d 24, 28 (1978). 18. Based upon the foregoing, Defendant’s order to show cause should be denied in all respects and in its entirety, as a matter of law and fact. 22-091496 5 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 WHEREFORE, it is respectfully requested that Defendant’s pending order to show cause be denied in all respects and in its entirety; and such other and further relief as to the Court may seem just and proper. I affirm this 10th day of May, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. _________________________________ Ellis M. Oster, Esq. Senior Associate, Director of Litigation LOGS LEGAL GROUP LLP Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 To: Joshua N. Koplovitz, Esq. WAPNER KOPLOVITZ & FUTERFAS, PLLC Attorneys for Defendant, Nancy Braverman 239 Wall Street Kingston, New York 12401 Served via e-filing 22-091496 6 of 7 FILED: ULSTER COUNTY CLERK 05/10/2024 11:17 AM INDEX NO. EF2023-1051 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/10/2024 ATTORNEY'S CERTIFICATION I, Ellis M. Oster, am an attorney duly admitted to the practice of law in the State of New York. I am a senior associate of LOGS Legal Group LLP, the attorneys for the Plaintiff, Carrington Mortgage Services, LLC, in the above captioned civil action. I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator (22 NYCRR), to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the presentation of the papers in this action checked below, or the contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of the Rules of the Chief Administrator (22 NYCRR): { } Summons & Complaint { } Answer or Reply { } Attorney Affirmation {X} Other: Affirmation in Opposition Word Count: The total number of words in this affirmation, exclusive of the caption, signature block, and this Attorney’s Certification statement page is 1,499. DATED: May 10, 2024 ________________________ Ellis M. Oster, Esq. Senior Associate, Director of Litigation LOGS LEGAL GROUP LLP Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 7 of 7