FOR LAW EDUCATOR, ESQ.:On November...
FOR LAW EDUCATOR, ESQ.:On November 2017 I received a letter from an attorney demanding payment or court action pursuant to Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et seq., based on an instant foreclosure
matter previously DECIDED/ORDERED, dismissed in September 27, 2013. According to the NYS Supreme Court records the Loan
Originator, Successor(s) and/or Agents initiated this action in 2008 in NYS Supreme Court.Retrospectively, in 2009 the above plaintiffs and/or their agents began an instant foreclosure matter consisting of a Complaint, Summons and a Notice of Pendency were filed by XXXX HOME LOANS SERVICING LP, F/K/A XXXXTRYWIDE HOME LOANS SERVICING, LP., XXXX OF AMERICA, N.A., MERS and XXXX LOANS, INC.The plaintiff further stated that on or about 2007, DEFENDANT executed and delivered to FOR XXXX LOANS INC., a note bearing date that day, whereby DEFENDANT covenanted and agreed to pay the sum of $XXX,XXX, with interest on the unpaid balance thereof, at the rate of $X,XXXXX per cent per annum, to be computed from the date of said note, by payments of $X,XXX.XX for the first 120 months in 2007 and thereafter in payments of $X,XXX.XX on the like date of each subsequent month, until said note is fully paid, except that the final payment of principal and interest remaining due, if not sooner paid, shall become due and payable in 2037.
However, as previously stated in 2013 after a Notice and an Affidavit made by the defendant the NYS Supreme Court Judge issued a Decision and Order whereby: 1.) the plaintiff’s complaint were dismissed pursuant to CPLR § 2219(a), 2.) to cancel and discharge a certain notice of pendency filed in this action in 2009 against the property and 3.) the Clerk of the County of Kings be served with a copy of this order with Notice of Entry forthwith.Irrespectively, in 2017; XXXX TRUST, N.A., AS TRUSTEE FOR filed in the Office of the City Register File Number (CRFN) XXXX and in 2016; XXXX MASTER PARTICIPATION TRUST filed in the Office of the City Register File Number (CRFN) XXXX.Through belief, PLAINTIFF, XXXX HOME LOAN SERVICING LP, F/K/A XXXX HOME LOANS SERVICING, LP., XXXX OF AMERICA, N.A., MERS was and still is a principal, organizer, shareholder, director, manager, officer, president, operator, agent, member, associate, partner and/or employee
of XXXX LOANS, INC.
It appears that prior Plaintiffs are attempting to commence a new action based upon essentially using the same Loan Originator, Successor(s) and/or Agents being XXXX HOME LOANS SERVICING LP, F/K/A XXXX HOME LOANS SERVICING, LP., XXXX OF AMERICA, N.A., MERS and/or XXXX LOANS, INC.Therefore, the DEFENDANT, hereby complains, alleges, affirms and herein Prays for relief by way of a Decree and Order granting Quiet Title
to DEFENDANT relative to the subject real property or, alternatively dismissing the PLAINTIFF’s Complaint pursuant to CPLR § 213(4), RPAPL § 1501(4), Violations of EPTL § 7-2.4, CPLR § 3211(a)(3), PLAINTIFF’s lack of legal capacity to sue, CPLR § 3211 (a)(5), the cause of action may not be maintained because statute of frauds
; RPAPL § 15 to Compel; NY Real Property Actions and Proceedings Law § 1301.Based upon the information stated above in particular to the NYS Supreme Court judge’s Decision and ORDER is there silent merit to CPLR 6514(b) Discretionary cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith?Secondly, based upon the information stated above, how could privies of the original parties that did not succeed in the instant foreclosure matter’s notice of pendency attempt to collect a debt pursuant to Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et seq., and would not the doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same?Finally, based upon the information stated above, I want to file in ACRIS a REVOCATION OF PROMISSORY NOTE AND MORTGAGE OR DEED OF TRUST by Grantor for Lack of Execution by Beneficiary
along with the 2013’s NYS Supreme Court Judge’s Decision and Order Prior to any further foreclosure litigation
, which shall be distributed accordingly to the parties. What affect do you believe this shall have upon the Court and any further proceedings?