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Adam Leitman Bailey, P.C. Defeats Motion to Vacate a Judgment of Foreclosure and Sale brought by Alleged Defrauded Former Property Owner

By Jackie Halpern Weinstein


In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee v. Faith D. Esimai, et al., Adam Leitman Bailey, P.C. defeated a motion to vacate a judgment of foreclosure and sale brought by an alleged defrauded former property owner. On the eve of the scheduled foreclosure sale, a former owner of the property alleged that the borrower defrauded her out of the property and that she was the true owner. The former owner argued that Plaintiff Note Holder was aware or should have been aware of the fraudulent conveyance. Additionally, the former owner, who resides at the property, alleged that she was never served with process in the action and, therefore, her default and the judgment should be vacated.

The borrower was convicted for conspiracy to commit wire fraud and bank fraud for unrelated properties. The former owner argued that while the borrower was not convicted regarding the instant property, the same thing occurred here, and Plaintiff should have been aware of the borrower’s history.

ALBPC successfully argued that the former owner’s argument was pure speculation. While the borrower was convicted for conspiracy to commit wire fraud and bank fraud, those convictions were the result of her actions regarding completely unrelated properties. Additionally, ALBPC argued that the former owner’s interest in the property was conveyed to another former owner, who then conveyed the property to the borrower. Therefore, since the former owner was not a party to the transaction conveying the deed to the borrower, she did not have standing to challenge the borrower’s ownership of the property. ALBPC also argued that any allegation regarding fraud would be barred by the applicable statute of limitations.

In response to the former owner’s application to vacate the judgment and her default, ALBPC successfully established that the former owner could not proffer a reasonable excuse for her default or a potentially meritorious defense to the action. ALBPC demonstrated that the former owner was properly served with process and that all of her purported defenses were without merit.

Lastly, ALBPC successfully persuaded the Court that the equities favored Plaintiff because the loan was currently due for the February 1, 2009 payment, and the conviction of the borrower occurred three years after the origination of the loan.

The Court denied the former owner’s motion and held that the “claims of fraudulent conveyance are insufficient to raise a meritorious defense.”

Jackie Halpern Weinstein, Esq. and Danny Ramrattan, Esq. of the Foreclosure Group at Adam Leitman Bailey, P.C. secured this win for the foreclosing Plaintiff.

Published Decision Part I

Published Decision Part II

 

 

 

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS