jpmc v. butler w

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P R E S E N T :

27At the IAS Motion Part,, of theSupreme Court of the State of NewYork, held in and for the County ofAdams Street, New York, New York

* Kings at the County Courthouse, 360ay of M ay, 20 11.

/HON. ARTHUR SCHACKJUSTICE OF THE SUPREME COURT............................................................................ XJPMORGAN CHASE BANK , NATIONAL ASSOCIATIONAS PURCHASER OF THE LOANS AND OTHER ASSETSOF WASHINGTON MUTUAL BANK, FORMERLYKNOWN AS WASHINGTON MUTUAL BANK, FA(THE "SAVINGS BANK ") FROM THE FEDERAL DEPO SITINSURANCE CORPORATION, ACTING AS RECEIVERFOR THE SAVINGS BANK AN D PURSUANT TO ITSAUTHORITY UNDER TH E FEDERAL DEPOSITINSURANC E ACT, 12 U.S.C. 9 1821(D), INDEX NO.001686/2010

W. BUTLER,

Plaintiff,

E7- a ,ORDER TO SHOW CAUSE

Upon the annexed affirmation of Y olande I. Nicho lson, Esq., dated May #PO1,\and the affidavit of defendant Frederick Butler, sworn to on April 14 , 2011,and thepapers annexed thereto,

A LET the plaintiff SHOW C AUSE BEFORE THE COURT, at IAS Part 27, Roo- 9 j (8479, at the Cou rthouse thereof, 360 Adams Street, Brooklyn, New York at= o'clockin the aibisem on Mcrp , 2011, or at such other time as counsel may b e heard, why anFofef loaJl Cjo&J+-c-.-ccc-----

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Order should not be entered:a) Awarding the defendant summary judgment pursuant to CPLR

3212;b) dismissing the instant lawsuit with prejudice;c) cancelling the notice of pendency, dated January 19,20 10, filedwith the Clerk of the Kipgs County Supreme Court on January 20,20 1O(Notice of Pendency); andd) imposing sanctions against plaintiff and plaintiffs counsel and co-counse l pursuant to 22 N.Y.C.R.R. 130-1.

FURTHER, why an Order should not be entered that plaintiff, in its coq plain tand during numerous settlement conferences held by the Kings County Supreme Courtbetween plaintiff and defendan t in 2010 and 2a11 with respect to this foreclosure actionpursuant to CPLR 3408 (the Settlement Confaen ces B efore the Court in this Matter),failed, to comply with the good faith requirement of CPLR 3408(f) over the aourse of12 months;

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FURTHER, why an Order should not be entered that plaintiff pursued q eprosecution of this foreclosure action, and participated and engaged in actions ,constituting Settlement Conferences Before the Court in this Matter, when plaiqtiff hadfull knowledge, and plaintif fs counsel knew or should have known, that plaintiff hadreceived payment on M ay 22,20 10 for the amount specified in paragraph SIXTH of itscomplaint dated on or about January 19,2010, as due and owing (that is, $434,382.89);

FURTHER, why an Order should not be entered that plaintiff and plaintiffscounsels mad e material misrepresentations to the Court, on April 14,201 1 and May 2,2011, for example, thereby engaging in misconduct before the Court;

FURTHER, why this Order shall not direct, pursuant to CPLR 1006(g), that uponexecution thereof, defendant is permitted to direct the payment of the sum of the

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outstanding principal amount of the loan that appears on the records of the Kings CountyClerk ($434,382.89) into the Court

b eFURTHER, why this Order shall not entered that the Court shall otherwise retain

the $434,382.89 principal amount for a period prescribed by the Court, to be releasedonly to a party other than defendant on conditions specified by the Court;

FURTH ER, why pla intif fs counsels, thG law offices of Steven J. B aum, and theirco counsel Cullen & Dykm anLLP, should not be sanctioned pursuant to New YorkJudiciary Law 0 487 for m isstatements and misaepresentations made to the Court on May2 ,20 11, to defendant during the course of 11 settlement conferences over 12 months, andto defendants counse l and the Court with respept to the fac tgand procedural hidtory ofthis case;

FURTH ER, why Judgment should not be entered pursuant to CPL R 321 11(a)(l),321 l(a)(3 ), 321 l(a )(7 ) and 321 l(a)(8 ) dismissipg this foreclosure action with pqejudice;

FURTH ER, why judgment should not be entered imposing sanotions againstplaintiff on the basis that pla in tiff s affidav it of \facts- amely its verifwd s andcomplaint -- contained material misrepresen tations about its legal capacity to sqe, aboutwhich plaintiff had full knowledge from comm encement of this;

FUR THE R, why a judgment should not be entered imposing sanctions againstplaintiff, and aw arding costs and a ttorneys fees to defendant on the basis that plaintiffwithheld material information, including the May 2 2, 20 10 payment from the Court.

FURTHER, why a Judgment shall not be entered by the Court, utilizing itsequitable powers under New York law in a foreclosure action, removing any cloud ontitle of JPM organ Chase Bank; his cloud has resulted in effectively preventing the

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consumm ation of the pending sale of the Subjebt Premises, after having undulyprejudiced defendan ts options to retain his home, and is likely to cause irreparableinjury, financial and otherw ise;

FUR THER , awarding attorneys fees, costs and disbursements necessary to sustainthis proceeding or in the alternative;

FUR THE R, granting to the defendant ke de ric k Butler such other and furtherrelief as his Court deems proper, including awarding costs, disbursements, andreasonable counsel fees , as to this Court seems just and proper.

NOW BE IT THEREFOREh

ORDERED THAT any title company bresent at and issuing title in su ra ce forthe benefit of purchaser@) at the closing of the kale of the Subject Premises is herebybarred from disbursing to JPM organ Chase Bank or to the Law 0

.an do r the Law Offices of Cullen & Dyknlan LLP the s u m ofORDERED THA T pl birected to provide to t h i s Court(the

e execution hereof, the name, teltphoneefendants or its counsel winumber, address and other contac t inform ation of the entity or third party that made thepayment to it on May 22,20 10 that is specified in the payment history it de livered to

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\,! ORDERED THAT, if= en provided byI y title company present at and issuing title insurance for thei benefit of purchaser(s) at the closing of the

' 4 ~directed to imm ediately deposit the sum o* ct Premises is hereby,hs W d , bud, 6 0R")./2 i? wth the Clerk of Kings County

'C2 pursuant to CPLR 1006(g), and upon said deposit, consider, for purposes o f the closingon the sale of the Su bject Premises, the mortgage on the records o f the County C lerk to

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i1 be satisfied;ORDERED THAT Plaintiff is barred from co llectiig of the sum of

from the sale of the Subject Premises scheduled fo r on or about May 12 ,201 1, land allfurther actions bymatter is barred j -\

ORDERED THAT, suf icient cause appearing therefor, pending the hqaring&6 4 9 0 , 6 6 d*of thi s motion or until further order oft he c ou rt, f i F t h eending sale of the Subject Premises are directed to be deposited with Court fQkpolled

0 until such time as the legal owner, holder or assiglnee of the2007 Note and the related mortgage presen ts itself to the Court, upon notice to defendant,with the requisite proof of claim pursuant to CPLR 1006, whichever is sooner;c

of this Order, and thep ~ mlq l 4 r v c epapers upon which it was granted, by * to the plaintiff to Steven J.

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4 elected for the pending purchase%onor b e 12 day ofMay, 201 1,be deemed goodnand sufficient service.&

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jpmc v. butler w

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