Body blow of 2012
When it seemed clear from the law, case law and the facts, that the foreclosure against the Brooklyn Lyceum was abandoned, a motion was made to dismiss a foreclosure in its entirety under a law that specifically detailed how, and when, the court must dismiss a case as abandoned. That law is CPLR 3215(c).
Put quite simply, the defendant has a certain amount of time to answer. That time was dictated by when and how the Summons and Complaint was served. Once that time to answer has expired (the Defendant has "defaulted"), the Plaintiff has one year to take some action, any action, towards a judgment of default (a decision that the defendant's time to answer had expired).
Such an action takes the form of a "Motion for default judgment and order of reference". It must be made with 365 days of Default.
Such a motion need not be presented to the defaulting defendant --UNLESS-- they have participated in some substantive form, that they have "appeared". If a defendant has participated/appeared, the motion must be presented to the defendant in advance, with some notice, as motions without notice never invoke the power of the court. And, if any party has appeared via an attorney, ALL papers must be served on that attorney. The failure to serve papers once a party has appeared or the failure to serve the papers on a party's known attorney, again, never invoke the power of the court.
Any decisions based on Notices/Motions that never invoke the power of the court are, void, not just voidable. "Void, not just voidable" has a very special legal meaning. That means, despite their presence on a piece of paper that may be filed with the court, such violations of statute, and jurisdiction, never have any validity and no entity is ever allowed to benefit from such a decision or act of the court.
In addition, the motion must be supported by (include) a sworn under the penalty of perjury affidavit that the time to answer has not been extended, that the time to answer has expired, that the defendant had not appeared iand that the defendant had not interposed an answer.
All four of those required staements are in the boiler plate "Default and Order of Reference" decision available on the Kings Supreme website.
The court was presented with such a motion supported by such an affidavit and the court issued a judgment of default based on that affidavit.
Therein lies the rub. What if, despite the sworn statement under penalty of perjury by the Plaintiff Attorney (who has since been suspended from the practice of law), a defendant had appeared by counsel, a defendant had been granted extensions of time to answer, a defendant had interposed an answer and the time to answer had not expired when the motion for default was submitted?
After getting a Judgment of Default, the Plaintiff went for the jugular, it sought, again by motion and notice and affidavit, a "judgment of foreclosure and sale".
If the court grants the Judgment of Foreclosure and Sale, the collateral on the loan, the Brooklyn Lyceum, can be sold to the highest bidder at auction in a fashion described by the judgment of foreclosure and sale itself.
Again, the affidavit in support of the motion has to match the wording and meaning of the boilerplate "Judgment of Foreclosure and Sale" from the Kings Supreme Court webcite. Those words are:
from which it appears that each of the defendants herein have been duly served with the Summons and Complaint in this action, or have voluntarily appeared personally or by their respective attorneys, and stating that more than the legally required number of days had elapsed since said defendants were so served and/or appeared; and that none of the defendants had served any answer to said Complaint, nor had their time to do so been extended
The rub, again. "duly served or appeared" and "more than the legally required number of days had elapsed" (since service/apearance) and "none of the defendants had served any answer" and "nor had their time to do so been extended".
From documents submitted BY THE PLAINTIFF 18 months after the motion for BY THE PLAINTIFF "Judgement of Foreclosure and Sale" was submitted, it is clear that
me had been extended", and "answers had been served".
From a reading of the first few items on the docket it is clear that the Brooklyn Lyceum had never been "duly served" as proof of servce of the complaint, that which STARTS the time to answer, has never been filed with the court. And, clearly, if the item starting time to answer was not filed, any affidavit swearing time to answer had expired is flat out perjury. If that perjury is by an attorney, a court officer, it is Fraud Upon the Court by a Court Officer. That becomes important later, when the legal maxim "fraud vitiates all it touches" is addressed.
Paradoxically, the proof of service is submitted in the Motion for Judgment of Foreclosure and Sale. Thus, the Motion that swears time to answer has expired, in and of itself, STARTS the time to answer.