Arch Bay Holdings LLC--Series 2010 A v Wadhwa

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[*1] Arch Bay Holdings LLC--Series 2010 A v Wadhwa 2012 NY Slip Op 51859(U) Decided on September 25, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2012
Supreme Court, Queens County

Arch Bay Holdings LLCSeries 2010 A, Plaintiff,

against

Jagandar K. Wadhwa, TOTEE K. WADHWA, MEENA BAGGA, et al., Defendants.



3597/2008



Appearances of Counsel:

For the Plaintiff: Peter T. Roach and Associates, P.C., by Vivian Chen, Esq., 125 Michael Drive, Suite 105, Syosset, New York 11791

For the Defendant Jagandar Wadhwa: Pro Se

Charles J. Markey, J.



The following papers numbered 1 to 10read on this motion by self represented defendant Jagandar Wadhwa staying the foreclosure sale of the real property located at 56-27 Oceania Street, Bayside, in Queens County, New York, 11364

Papers Numbered

Order to Show Cause-Exhibits ..................................................................1-6

Opposing Affirmation-Exhibits ...................................................................7-9

Reply Affidavit-Exhibits...........................................................................10-11

On July 20, 2006, Jagandar K. Wadhwa (also referred to herein as "Mr. Wadhwa"), Totee K. Wadhwa, and Meena Bagga executed and delivered to ABN AMRO Mortgage Group, Inc., a mortgage on the real property known as 56-27 Oceania Street, Bayside, in Queens County, New York, 11364, and note dated July 20, 2006, in the sum of $625,000.00. The mortgage was recorded on August 22, 2006.

ABN AMRO Mortgage Group, Inc. assigned said note and mortgage to Citimortgage Inc., on November 28, 2006, and this assignment was recorded on December 21, 2006.

Jagandar K. Wadhwa, Totee K. Wadhwa, and Meena Bagga ceased making monthly payments on the mortgage in October 2007, and Citimortgage Inc. commenced the within action to foreclose on the mortgage on February 11, 2008.

Defendants Jagandar K. Wadhwa, Totee K. Wadhwa and Meena Bagga defaulted in appearing and answering the complaint. Citimortgage Inc. assigned the subject note and [*2]mortgage to Arch Bay Holdings, LLC -Series 2010 A on March 2, 2010, and the assignment was recorded on April 27, 2010. Mr. Wadhwa did not attend the foreclosure conference that was held on March 29, 2010.

A judgment of foreclosure and sale, dated October 19, 2010, was entered in this action on October 27, 2010, and said judgment provided for the substitution of Arch Bay Holdings, LLC -Series 2010 A, as the plaintiff herein. The foreclosure sale was advertised for March 4, 2011, and plaintiff served a notice of sale on defendants Jagandar K. Wadhwa, Totee K. Wadhwa, and Meena Bagga on January 14, 2011.

Defendant Totee K. Wadhwa, in an order to show cause dated March 2, 2011, moved to stay of the foreclosure sale and vacate the judgment of foreclosure. This Court in an order dated May 10, 2011, denied the motion for a stay. Plaintiff thereafter re-noticed the foreclosure sale for December 2, 2011, and served a notice of sale on defendants Jagandar K. Wadhwa, Totee K. Wadhwa, and Meena Bagga on November 2, 2011. Defendant Bagga, in an order to show cause dated October 31, 2011, moved to stay the sale. This Court denied the motion, in an order dated March 26, 2012, and noted that it was the defendants' second attempt to stay the sale.

Plaintiff noticed the foreclosure sale for June 8, 2012 and served a notice of sale on all of the defendants on May 2, 2012. Defendant Jagandar K. Wadhwa in the within order to show cause dated June 7, 2012, seeks a stay of the foreclosure sale.

The order to show cause requires the moving defendant to personally serve a copy of said order, the affidavit in support, and all other papers on which the order is based upon the plaintiff's representative, plaintiff's attorney and the appropriate referee, on or before 11:00 a.m., on June 8, 2012 by personal delivery, and to present an affidavit or other proof of service to the Clerk of the IAS Part on June 21, 2012. Defendant Jagandar K. Wadhwa, however, failed to comply with the order to show cause, as he admittedly did not serve the plaintiff with copies of the four notarized affidavits that were attached to the order to show cause. The defendant, instead, improperly caused to be served documents denominated as "affidavits" that were signed, but not notarized.

Mr. Wadhwa, moreover, upon the foregoing papers, has failed to produce any evidence, that, under the terms of the mortgage, plaintiff is obligated, at this post-judgment juncture, to enter into a forbearance or modification agreement with him, or the co-defendants, or to reinstate the loan. In addition, although this defendant requested that the loan servicer provide him with a copy of its loan modification guidelines, he has failed to demonstrate that he has made a written application for such modification or that he sent a financial package to the plaintiff, or its servicer, demonstrating that he has the financial means to meet his monthly obligations. Defendant does not claim that he has a loan modification application pending with the plaintiff. Defendant, thus, has failed to demonstrate that any basis exists for staying the foreclosure sale of the subject property and scheduling a loan modification conference.

In view of the foregoing, defendant's motion to stay the foreclosure sale is denied in its [*3]entirety.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: September 25, 2012



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