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How strong is rule 3211(a)1, 5, 7 to argue for a dismissal…

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how strong is rule 3211(a)1...
how strong is rule 3211(a)1, 5, 7 to argue for a dismissal for a partition sale. And what are the steps i was wrongfully served a complaint but the lawyer didnt reference the term partion of sale but simply asked for the sale of my home and have the proceeds from my half pay for the mortgages and my brother keep the remaining.
Submitted: 11 months ago.Category: Real Estate Law
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9/14/2017
Real Estate Lawyer: Ray, Lawyer replied 11 months ago
Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 48,880
Experience: Texas Attorney for 30 years dealing in real estate
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

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Real Estate Lawyer: Ray, Lawyer replied 11 months ago

You can file a motion to dismiss on the basis of service and other issues you put in your motion.

The Civil Practice Law and Rules ("CPLR") 3211(a) provides a procedure to bring a motion, before answer, for judgment dismissing one or more causes of action asserted against the party. CPLR § 3211 is the primary section available by which to seek early claim dismissal, though there are a handful of other possibilities (mentioned below). A "cause of action" subject to dismissal under this rule includes counterclaims, cross-claims, and third-party claims.

Although substantive or procedural issues may fall within the ambit of a motion to dismiss, more often than not a court's analysis of a motion to dismiss will be limited to review of "questions of law." A question of law typically involves application of a statutory rule or case authority to undisputed facts (or to facts to which there can be no legitimate dispute). A court will generally loathe getting involved in the interpretation of disputed facts at this early stage of the litigation.

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Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Cases you may use in your motion

https://www.newyorkappellatedigest.com/motions-to-dismiss-cplr-3211

File your motion you may well be able to get it dismissed, its a no risk proposition here, if denied you file an answer and go forward if you win it goes away.

I appreciate the chance to help you today.Thanks again.

If you can positive rate 5 stars it is much appreciated.

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Customer reply replied 11 months ago
the attorney on the other end has stated he wants to move quickly in order to have me sell the house how easy is it for him to do so? When you say go away, he simply put a request in form of a complain to have me sell home and have my equity pay for the mortgages claiming he didnt benefit even though he signed the mortgage (but not the note) i in my affirdavit claim to have always paid for the taxes insurance principal and interest is that enough for them to dismiss in this early stage?
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Here in a partition sale the gross sales proceeds are held by the court, then the costs here , the mortgage payments, taxes, legal fees, costs of sale etc come out of gross and the net is divided.Everything here gets accounted for so if either party has paid for something it gets accounted for.The court wants an equitable outcome.

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Customer reply replied 11 months ago
is this equitable outcome decided before the sale because if there going to make me sell and it comes to light hes owed 10,000 hyperthetically it be ridiculous for me to have sold. So the ploy for me to pay the mortgages cant be done? given theses numbers the house appraised for 585,000 the mortgages are 315,000 and taxes inurance since 2001 is 97,000 and principal and interest is 180,000 of which i had very little support to pay that all but he claims he didnt benefit from the mortgages thats why hes not paying
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

The judge sorts out the conflicts and who get paid what.I think yu are due some credit here for the mortgage payments.

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Customer reply replied 11 months ago
can a judge break down a mortgage and say 30k went to his bills and 70k went to mine so hes responsible for less of the mortgage even though we both signed?
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Yes he can equity give s judge the power to decide all of this.The court usually holds funds from gross ale and has hearing and argument on who gets paid what.

Thanks for the follow up.

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Customer reply replied 11 months ago
im confused by the typing... so him signing mortgages doesnt make him equally responsible for the debt..essentially saying that i could be liable for more of it but yet he didnt earn income for the time he lived here which only as adult years 2001 - 2009
how can that be even possible i though i had a stronger argument cause i paid all the bills including the taxes inurance mortgages and utilties
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

You should get credit for the mortgage , taxes, insurance , etc. If you lived there and he had no use of it judge has to decide whats fair here.You may not get every dime you paid because you had use of property, the bot***** *****ne will be you get some credit here not sure how much, judge hears from all and decides who gets paid back what and then net is divided.

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Customer reply replied 11 months ago
Ok so what we were saying before was not as accurate that if he spent 30 I spend 70 that I'm more liable from equity cause in still paying the entire amour on the loans and. I understand the part I live there but doesn't certain things like taxes and mortgage argue it's his debt to maintain property
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Yes the resolution here is in the middle I agree he got deductions and you didn't and other arguments.To me you ought to get at least 50% credit for what you paid and then half of the net. You can always argue for more and try to settle for something in the middle.

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Customer reply replied 11 months ago
under the codes 3211 a1,5, 7 how easy or difficult would it be to see a dismissal without prejudice if im saying that right being his complaint seemed to be very simple with zero proof or exhibits
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

You may file a motion to dismiss here and seek to make him refile and be more specific with his facts in his pleading.I agree this is too short and too vague.I hope you file and force him to replead it and refile.Thats a good next step.

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Customer reply replied 11 months ago
we are filing and why do you like that step and why you like replead? i assume on the bad service alone its going to be dismissed but we also answered it with my affirdavit and
cplr3026
mention cagan vs. cagan 56 misc 2d 1045 and
vlacanich v kenny 271 ny 164,170, 2 n.e.2nd 527
cplr 308
kowachuk v. stroup 61 a.d. 3d118,121 (first dept 2009)obviously not sure how these tie in...
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Some of theses may not tie into service, but if you have other points they reference those.

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Real Estate Lawyer: Ray, Lawyer replied 11 months ago

I thought maybe you could claim they failed to state a cause of action since the pleading was bare bones and these cases are recent ones on that issue.

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Customer reply replied 11 months ago
Outside of service he's staying that I'm entitled to improvements mortgage taxes etc. Requesting dismissal on fact he has little evidence to support his claim and he abandon property and was never just plus I been paying both our half
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Thats what your next step is here and see where it goes from there.I wish you the best with your motion.

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Customer reply replied 11 months ago
If I understand he's filing lis pendon and motion to dismiss for service they have no jurisdiction n dismiss on lack of evidence. What do you think
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

I am not sure they can prevail here based on what they filed.

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Customer reply replied 11 months ago
The previous is what my attorney is filing to be clear. If u want to review I wrote it misleading. The other attorney just file complaint
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

You can claim bad service and failure to state a case of action.

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Customer reply replied 11 months ago
what's the possible outcome of that and what about lis pendon
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

You can get his case dismissed, force him to refile, they may have to drop lis pendens.

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Customer reply replied 11 months ago
We filed lis Pender supposedly it would protect me from having them sell the property till after case or complaint is done n a buy out is determined
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

A lis pendens will cloud title and force them to resolve it all.Cannot do anything until it is resolved and released here.

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Customer reply replied 11 months ago
Ok so that's a good thing then instead of a sale they would have to wait. Can that be denied or blocked or somehow denied.Without written or agreement to have him pay back everything I expend. Is that required or does it imply from being co owner or mortgages that he has to pay back
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

It would force them to slow down and refile and reserve you.

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Customer reply replied 11 months ago
Ray does this sound like I'm gonna lose house seems case law minimum how's it fair he lived off money n I get left with bills
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

I don't think you will totally loose, this is something that may end up in the middle somewhere.Don't give up yet.

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Customer reply replied 11 months ago
Ray I would like to talk but everyone's sleeping I probably take u up on it tomorrow. But for now. I don't expect to steal the house. But not sure how it could legally be fare he walked away in 2009 I pay for everything maintain property pay down debt etc. And he wakes up says sell and it's up in the air if I can get the improvements taxes insurance n mortgage payments back.
Customer reply replied 11 months ago
From what I understand there's not a lot of case law in NY for this. I guess it's unheard of. But there's laws that say. He's liable with mortgages signed. That maintenance can be recouped as well as improvements. Then there's always th. But
Real Estate Lawyer: Ray, Lawyer replied 11 months ago

Talk to you again soon.Accept and you can ask as much as you want.

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