Aurora Loan Servs., LLC v Sookoo
Annotate this CaseDecided on August 14, 2009
Supreme Court, Kings County
Aurora Loan Services, LLC,, Plaintiff,
against
Shahmela Shah Sookoo, et. al., Defendants.
1043/08
Appearances:
Plaintiff
Rosicki, Rosicki & Associates, Esq
Batavia NY
Arthur M. Schack, J.
The renewed application of plaintiff AURORA LOAN SERVICES, LLC (AURORA), upon the default of all defendants, for an order of reference for the premises located at 16 Goodwin Place, Brooklyn, New York (Block 3293, Lot 17, County of Kings) is denied and the complaint is dismissed with prejudice for plaintiff's failure to comply with my March 31, 2009 decision and order. The January 10, 2008 notice of pendency filed against the above-named real property by AURORA is cancelled. I ordered on March 31, 2009 that:
leave is granted to plaintiff AURORA LOAN SERVICES, LLC, to
renew its motion for an order of reference for the premises located at
16 Goodwin Place, Brooklyn, New York (Block 3293, Lot 17, County
of Kings), within sixty (60) days of this decision and order, provided
that plaintiff, AURORA LOAN SERVICES, LLC, submits to the Court:
(1) all loan origination documents with respect to the August 1,
2007 mortgage and note between LEHMAN BROTHER BANK, FSB,
as mortgagor, and SHAHMELA SHAH SOOKOO, as mortgagee, for
the premises located at 16 Goodwin Place, Brooklyn, New York (Block
3293, Lot 17, County of Kings), and recorded on August 30, 2007 in
the Office of the City Register of the City of New York, City Register [*2]
File Number (CRFN) 2007000448776; and,
(2) an affidavit or affirmation from counsel for plaintiff, AURORA
LOAN SERVICES, LLC, identifying whether the instant mortgage loan,
pursuant to L 2008, ch 472, § 3-a, is a subprime home loan as defined in
Real Property and Actions Proceedings Law § 1304 or is a high-cost home
loan as defined in Banking Law § 6-l.
Plaintiff AURORA renewed its application for an order of reference on May 26, 2009, 56 days subsequent to my March 31, 2009 order. However, plaintiff AURORA has failed to comply with my March 31, 2009 order. The order required plaintiff to do two things - (1) provide all documentation with respect to the August 1, 2007 origination of the instant mortgage loan and (2) provide the Court with an affirmation identifying whether the instant mortgage loan is a subprime home loan, as defined in Real Property and Actions Proceedings Law § 1304 or is a high-cost home loan as defined in Banking Law § 6-l. Plaintiff complied with providing the Court an affirmation identifying that the instant mortgage loan is not a subprime loan, as defined in Real Property and Actions Proceedings Law § 1304, or a high-cost home loan, as defined in Banking Law § 6-l, but plaintiff failed to provide the Court with the ordered loan origination documents.
Defendant SHAHMELA SHAH SOOKOO (SOOKOO) did not make any payments on the instant mortgage loan. The instant adjustable rate note demonstrates that defendant SOOKOO executed a "5-25" adjustable rate mortgage (ARM) loan. According to the August 1, 2007 Adjustable Rate Note, defendant SOOKOO was to initially pay principal and interest of $3,731.36 per month for the initial five years, at 6.875%. Then, on August 1, 2012, and every six months thereafter, the interest rate could change on the "change date," based upon an "index" that is the average of interbank offered rates for the six-month U.S. dollar-denominated deposits in the London market (LIBOR) as published in the Wall Street Journal. The specific terms of the SOOKOO Note provided that the new interest rate would be the LIBOR rate plus 2.25%, rounded to the nearest .125%. The interest-rate could increase or decrease up to 2.00% on each "change date," with the interest rate capped at 12.875%.
In my March 31, 2009 order, I held that:
defendant SOOKOO defaulted in making his or her first mortgage
payment of $3,731.36 on September 1, 2007. The Court is concerned
that defendant SOOKOO's immediate default could be a strong indicator
of either defendant's inability to pay or outright fraud. Therefore, to
determine if this has happened, plaintiff's application for an order of
reference is denied without prejudice for plaintiff to provide the Court
with all documentation used to grant the underlying loan. The Court
will determine if the borrower did not have sufficient income to make
any payments, which could mean that the loan may have been in violation
of federal statutes, or that the entire mortgage event was a fraud.
Plaintiff's counsel asserts, in ¶'s 15 -19 of his affirmation in support of the motion, that the loan origination documents requested by the Court are provided with the motion. This is false. None of the loan origination documents are attached to this renewed motion. Plaintiff's counsel, after asserting, in ¶ 15 of his affirmation, that "[y]our affirmant does not believe that [*3]examination of the loan origination is pertinent to the determination of the plaintiff's application," then states that "[n]evertheless, provided herein are the loan origination documents pertaining to the mortgage that is the subject of this action, as requested by the court." Further, counsel has the temerity to state, in ¶ 19 of his affirmation, that "[t]he origination documents provided herein include credit reports, loan application, driver's license and other personal and confidential documentation" and requests that "after the court has completed its review, that these documents be returned to this office and not filed in the County Clerk's office." None of these loan origination documents were provided to the Court with the motion.
Without the loan origination documents the Court cannot determine if defendant SOOKOO's immediate default is due to either defendant SOOKOO's inability to pay or outright fraud on the part of the loan originator LEHMAN BROTHERS BANK, FS (LEHMAN), which filed for Chapter 11 bankruptcy protection at the height of the financial crisis in September 2008. Plaintiff AURORA was a LEHMAN subsidiary.Further, the Court wonders why AURORA took the assignment of the instant loan from LEHMAN BROTHERS on December 14, 2007, 105 days after defendant SOOKOO failed to make the first mortgage loan payment? Also, the December 14, 2007 assignment from MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS, INC, (MERS), as nominee for LEHMAN, was executed by Michele Thompson, Vice-President of MERS, in Scottsbluff, Nebraska. According to the assignment, AURORA is also located in Scottsbluff, Nebraska. The Court ponders if there was an incestuous and nefarious relationship between the defunct LEHMAN BROTHERS BANK, FSB and AURORA on the high plains of Nebraska.
CPLR § 6501 provides that the filing of a notice of pendency against a property
is to give constructive notice to any purchaser of real property or encumbrancer
against real property of an action that "would affect the title to, or the possession, use or
enjoyment of real property, except in a summary proceeding brought to recover the possession of
real property." "The purpose of the doctrine was to assure that a court retained its ability to effect
justice by preserving its power over the property, regardless of whether a purchaser had any
notice of the pending suit . . . " and, that "the statutory scheme permits a party to effectively
retard the alienability of real property without any prior judicial review." (5303 Realty Corp.
v O & Y Equity Corp. 64 NY2d 313, 319-320 [1984]).
Article 65 of the CPLR outlines notice of pendency procedures. The Court, in Da Silva v Musso (76 NY2d 436, 442 [1990]), held that "the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title." CPLR § 6514 (a) provides for mandatory cancellation of a notice of pendency by: [t]he court, upon motion of any person aggrieved and upon such
notice as it may require, shall direct any county clerk to cancel a [*4]
notice of pendency, if service of a summons has not been completed
within the time limited by section 6512; or if the action has been
settled, discontinued or abated; or if the time to appeal from a final
judgment against the plaintiff has expired; or if enforcement of a
final judgment against the plaintiff has not been stayed pursuant to
section 5519. [Emphasis added]
The plain meaning of the word "abated," as used in CPLR § 6514 (a), is the
ending of an action. Abatement is defined (Black's Law Dictionary 3 [7th ed 1999]) as "the act of
eliminating or nullifying." " An action which has been abated is dead, and any further
enforcement of the cause of action requires the bringing of a new action, provided that a cause of
action remains' (2A Carmody-Wait 2d § 11.1)." (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, the
Nastasi Court, at 36, instructed that "[c]ancellation of a notice of pendency can be
granted in the exercise of the inherent power of the court where its filing fails to comply with
CPLR 6501 (see 5303 Realty Corp. v O & Y Equity Corp. at 320-321; Rose v Montt
Assets, [1st Dept 1998]; Siegel, NY Prac § 336 [4th ed])." Thus, the dismissal of the
instant complaint must result in the mandatory cancellation of plaintiff AURORA's notice of
pendency against the property "in the exercise of the inherent power of the Court."
Therefore, with plaintiff failing to comply with my March 31, 2009 order, the
instant renewed application for an order of reference is denied, the complaint is dismissed with
prejudice, and the notice of pendency against the subject property is cancelled.
Conclusion
Accordingly, it is
ORDERED that the renewed application of plaintiff AURORA LOAN
[*5]
SERVICES, LLC, for an order of reference for
the premises located at 16 Goodwin Place, Brooklyn, New York (Block 3293, Lot 17, County of
Kings) is denied; and it is further
ORDERED, that the instant complaint, Index Number 1043/08, is dismissed with prejudice because plaintiff AURORA LOAN SERVICES, LLC failed to comply with my March 31, 2009 decision and order in this action; and it is further
ORDERED, that the Notice of Pendency in the instant action, Index Number 1043/08, filed with the Kings County Clerk on January 10, 2008, by plaintiff, AURORA LOAN SERVICES, LLC, in the instant action foreclose a mortgage for real property located at 16 Goodwin Place, Brooklyn, New York (Block 3293, Lot 17, County of Kings) is cancelled.
This constitutes the Decision and Order of the Court.
ENTER
___________________________
HON. ARTHUR M. SCHACKJ. S. C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
