INDEX [decisions.courts.state.ny.us]decisions.courts.state.ny.us/10jd/nassau/decisions/index/...Eschen mailed Feldman, Fein Such & Crane, attorneys for National, and Muscat a notice

INDEX

NO. 2992/07

SUPREME COURT - STATE OF NEW YORKIAS TERM PART 11 NASSAU COUNTY

PRESENT:HONORABLE LEONARD B. AUSTIN

Justice

DEUTSCHE BANK NATIONAL TRUSTCOMPANY as Trustee under thePooling and Servicing AgreementSeries ITF INDX 2005-AR 18,

PlailJtiff,

- against -

Motion RID: December 6, 2007Submission Date: April 18, 2008Motion Sequence No. :002 MOT/D

COUNSEL FOR PLAINTIFFEschen Frenkel , Weisman & GordonLLP20 West Main StreetBay Shore, New York 11706

COUNSEL FOR DEFENDANTSANTHONY MUSCAT , NATIONAL CITY

(Anthony Muscat)BANK and "JOHN DOE" #1 through Lanin Law P.JOHN DOE" # 1 0 the last ten name

,:-::=-= ~~~~~

. of th as, Ste. 1802

being fictitious and unknown to the New York, New York 10018plaintiff. The person or partiesintended being the persons or partiesif any having or claiming an interest inor lien upon the Mortgaged premisesdescribed in the Complaint,

Defendants.

(National City Bank)Fein Such & Crane, LLP747 Chestnut Ridge Road, Suite 200Chestnut Ridge, New York 10977

REFEREEArza Rayches Feldman, Esq.626 EAB PlazaUniQn "" York 11 556

ORDER

the following papers were read on the motion of Defendant, Anthony Muscat , to

vacate the judgment and of foreclosure and sale , dated August 22 , 2007:

Order to Show Cause granted November 25 , 2007;Affidavit of Anthony Muscat sworn to November 28, 2007;

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT ef at.Index No. 2992/07 Affirmation of Scott L. Lanin , Esq. , dated November 28 2007;Affirmation of Joseph F. Battista , Esq. , dated January 22 , 2008;Letter of Scott L. Lanin , Esq. , dated May 9 , 2008.

Defendant , Anthony Muscat ("Muscat") moves pursuant to CPLR 5015(a) to

vacate the judgment of foreclosure and sale , dated August 22 , 2007 , related to real

property, located at 48 Rochester Avenue , East Atlantic Beach , New York , also known

as 48 Rochester Avenue , Long Beach , New York ("Property ), and to allow him to

interpose an answer. Muscat moved by order to show cause and also sought an order

temporarily restraining and enjoining the Plaintiff, Deutsche Bank National Trust

Company as Trustee under the Pooling and Servicing Agreement Series ITF INDX

2005-AR18 ("Deutsche Bank"), from selling, transferring, hypothecating, pledging,

assigning, encumbering or otherwise disposing; of or making any attempt to take

possession of any part of the Property. On November 25, 2007 , the Court granted

Muscat's order to show cause and ordered that pending the determination of this

motion , the Court-appointed referee , Arza Rayches Feldman , Esq. ("Feldman ), was

stayed and enjoined from auctioning the Property.

BACKGROUND

Muscat hasuowned-the Property, a legal two family home , since 1995. Muscat , a

United States army veteran , worked as a carpenter until work-related injuries sustained

in April 1987 , caused him to ha e to wear a full body back brace restricting his mobility

and ability to work. As a result, he receives disability benefits.

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT ef at.Index No. 2992/07

On July 1 , 2005 , Muscat executed a mortgage in favor of Mortgage Electronic

Registration Systems , Inc. ("MERS") acting solely as nominee for IndyMac Bank , F.

lndyMac ) to secure payment of a $500 000 loan. At the same time , Muscat executed

an adjustable rate note ("Note ) in the principal amount of the mortgage with an interest

rate of at least 1 % but no more than 9.950%. The Note specified that the interest rate

was subject to change on September 1 , 2005 and on the first day of each month

thereafter. The first payment was to be $1 608.20 and , according to the Note , that

amount was subject to change beginning September 1 , 2006 and every year thereafter.

On October 4 , 2005 , the mortgage was recorded in the Office of the Nassau

County Clerk.

Muscat obtained the subject mortgage through The HomeFundingGroup, LLC

HomeFunding ), a registered mortgage broker. On May 9 , 2005 Muscatsigned a pre-

application disclosure and fee agreement which identified HomeFunding as a registered

mortgage broker arranging loans with third party lenders. Jacques Jean-Baptiste

("Jean-Baptiste ) is listed as Muscat's HomeFunding contact on the disclosure and fee

agreement form.

Muscat retained a lawyer , David Baram , Esq. ("Baram ) to representhim atth-

closing. However, at the time of the closing, another attorney, who Muscat had never

met before and whose name he cannot recall , attended given Baram s inability to

attend. Muscat recalls that the attorney, who attended the closing, did not explain the

paperwork he was signing.


By assignment , dated February 15 , 2007 and recorded on March 15 , 2007 , the

Note and mortgage were assigned to Deutsche Bank.

On February 20 2007 , Deutsche Bank filed a summons and complaint against

Muscat and Defendant National City Bank (" National"), in addition to a notice of

pendency of action against the Property.

In the meantime , Muscatattempted to return to work in 2007 but are- injury

caused him to be bed-ridden throughout the spring and summer of 2007. He was

eventually taken to NYU Emergency Center for treatment in September 2007.

Muscat states that he initially learned of the foreclosure proceeding when his

tenant gave him a copy of the summons that had been left in their shared mailbox at the

Property. With respect to service , Plaintiff submitted an affidavit indicating that Muscat

_._

was served personally at his home on March 1 , 2007 at 7:50 p.

Believing that he had been defrauded by IndyMac , HomeFunding and Jean-

Baptiste, Muscat intended to contest the foreclosure. Muscat's union , Local 157 United

Brotherhood of Carpenters , assisted him with obtaining legal counsel , Robert Ziskin

Esq. ("Ziskin ), of The Ziskin Law Firm. Muscat retained Ziskin in March 2007. Ziskin

sent a letter to Deutsche Bank' attorneys Eschen , Frenkel , Weisman & Gordon , LLP

("Eschen ), dated March 28 , 2007 , via facsimile advising Eschen that The Ziskin Law

Firm "will be representing Anthony Muscat in connection with the foreclosure action...

(Muscat Ex. B). Ziskin also wrote that Muscat had sufficient funds to bring his mortgage

current and requested a payout ,figure at their earliest convenience.


Ziskin contacted Eschen again via phone on May 21 2007 requesting updated

payoff figures. At that point in the litigation , Muscat intended to sell another property he

owned in New Jersey and use the proceeds to bring the subject mortgage current. The

New Jersey sale did not come to fruition and , as a result, Muscat was unable to raise

sufficient funds to satisfy the arr ars on the Property s mortgage.

No answer was ever filed in response to Deutsche Bank's complaint even though

it was Muscat's belief that Ziskin was protecting his interests in this litigation. Muscat

was also under the impression that Ziskin was receiving copies of all documents served

by Plaintiff relating to the foreclosure action.

A judgment of foreclosure and sale was granted on August 22 2007.

Eschen mailed Feldman , Fein Such & Crane, attorneys for National , and Muscat

a notice of entry, dated October 12 , 2007 , of a judgment of foreclosure and sale entered

in the Office of the Nassau County Clerk on August 29 , 2007. Muscat alleges that he

found out about the scheduled December 2007 foreclosure sale when his tenant saw a

notice announcing same in the newspaper and brought it to his attention. After seeing

that notice , he contacted another attorney, Ray Verdi , Esq. ("Verdi"), who obtained a

Cbpy of the sale notice from Eschen. Eventually, Muscat retained his current counsel

Lanin Law P. C..

Muscat now moves to vacate the judgment of foreclosure and sale. He argues

that his default was excusable since Eschen failed to put his then-attorney, Ziskin , on

notice of the papers being filed against him with respect to the foreclosure action even

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT, ef at.Index No. 2992/07

though the papers were mailed to him. Moreover, Muscat assumed that copies of these

papers were being forwarded to Ziskin since Ziskin had written to Eschen that he

represented Muscat. In addition , Muscat does not have a legal background , does not

understand the legal process ori legal documents and was incapacitated for most of

2007 which is the reason why he retained Ziskin in the first place.

In conjunction with arguing that his default was excusable , Muscat contends that

he has a meritorious defense to the foreclosure action. He alleges that IndyMac

engaged in predatory lending in the form of "high pressure sales and bait and switch

concealing and switching loan terms in the final closing document , misrepresenting loan

terms , and offering a loan that (he) really could not afford and which offered (him) no

real benefit." (Muscat Aff. ,-18). Muscat asserts that the HomeFunding broker Jean-

Baptiste, verbally represented to Muscat that his interest rate would start at 1% and

increase about 1 % a year through the fourth year of the loan when it would be 4.6%. At

that point, before the rates became too excessive , Jean-Baptiste promised that he

would help Muscat re-finance the loan. Despite these representations by Jean-Baptiste

who Muscat thought was a broker for IndyMac , Muscat states that the loan s actual

rates were far higher and more risky than those promised-by Jean-Baptiste since the

interest cap is 9.95%. In addition , when Muscat requested copies of documents he

1 Muscat also alleges that IndyMac made misrepresentations to him in 2005 withrespect to a home he purchased in New Jersey. As this is an unrelated mortgage , theCourt wil not address any allegations concerning the Jamesburg, New Jersey loan.


signed and had been left blank in some areas , Jean-Baptiste responded that he could

not provide copies of the loan application since Muscat had yet to lock his interest rate.

At the time of Muscat's sixth payment , the interest rate was increased. When he

inquired about the increase , IndyMac referred Muscat to the mortgage documents.

Muscat's attempt to speak to Baram and Jean-Baptiste about his increase were

unsuccessful.

In response to the motion , Deutsche Bank asserts that Ziskin never requested an

extension of time to answer, never served a notice of appearance, never requested

service of any papers in the action , never served an answer to the complaint and never

moved to vacate the default. Deutsche Bank includes an affidavit of service indicating

that the judgment of foreclosure and sale with notice of entry was mailed to Muscat at

---.

both 48 Rochester Avenue , Long Beach , New York 11561 and48 Rochester Avenue

East Atlantic Beach, New York 11561 , on October 11 , 2007. On November 5 , 2007

Deutsche Bank mailed Muscat a notice of sale to the same two addresses. No mailings

were made to Ziskin.

Deutsche Bank asserts that Muscat's current attorney, Scott Lanin Esq. , is the

first and only attorney to appear in this action on behalf of Muscat despite its prior

contact with Ziskin and Verdi , who called Eschen on November 20 , 2007 to say that he

would be filng a notice of appearance on behalf of Muscat. No notice of appearance

was ever fied by Verdi.

DEUTSCHE BANK NA T'L TRUST CO. v. MUSCAT ef at.Index No. 2992/07

Deutsche Bank also opposes the motion on the ground that Muscat does not

have a meritorious defense sinc , in connection with the subject mortgage

MERS/lndyMac provided and Muscat received and executed all of the required

disclosures , which included a good faith estimate , a truth- in-Iending disclosure

statement , a notice of his right to cancel , a RESPA servicing disclosure , an nti-

predatory lending disclosure , arlARM loan program disclosure pertaining to " 12 MAT

Payment-Capped Non-Convertible ARM" and the HUD-1 Settlement Statement. In

addition to IndyMac making all required disclosures , Deutsche Bank maintains that

Muscat has no meritorious defense since Muscat's complaints of misrepresentation

involve HomeFunding, the mortgage broker he hired , Muscat was represented by

counsel at the closing and Deutsche Bank is a holder in due course of the Note and

mortgage. . n

DISCUSSION

Motion to Vacate-Legal Standard

A defendant moving to vacate a default pursuant to CPLR 5015(a)(1) must

demonstrate a reasonable excuse for its delay in appearing and answering the

complaint and a meritorious defense to the action. Eugene Di Loren

-:.

AC.

Dutton Lumber Co.. Inc. , 67 N. 2d 138 , 141 (1986). See Mora v. Scarpitta , 52 AD.

2 Deutsche Bank also opposes the motion on the ground that the IndyMac

mortgage regarding the New Jersey purchase has no bearing on the enforceability ofthe mortgage on the Property. Since the Court has noted that it will not addressMuscat' s allegations relating to the unrelated New Jersey purchase , it will similarlyrefrain from addressing Deutsche Bank's arguments in response.


663 (2 Dept. 2008); Montague v. Rivera , 50 AD. 3d 656 (2 Dept. 2008); Miller v.

Ateres Shlomo. LLC , 49 AD. 3d .612 (2 Dept. 2008); Hodges v. Sidial , 48 AD. 3d 633

Dept. 2008); Beniamin Nurse v. Figeroux & Assoc. , 47 AD. 3d 778 (2 Dept. 2008);

and Savino v. "ABC Corp. , 44 AD. 3d 1026 (2 Dept. 2007).

New York has a strong public policy of having cases resolved on their merits

especially where there has been no evidence of contumacious behavior and no

demonstrated prejudice to the plaintiff. See Perez v. Travco Ins.. Co. , 44 AD.738 (2

Dept. 2007); Scarlett v. McCarthy , 2 AD. 3d 623 (2 Dept. 2003); and Walter v.

Rockland Armor & Metal Corp. , 140 AD.2d 335 (2 Dept. 1988).

The trial court has inherent discretion to relieve a party from a default within the

one year limitations period set by CPLR 5015(a)(1). Rukeyserv. ':Richardsorl 43A. 3d -

815 (2 Dept. 2007). See Abrams v. City of New York , 13 AD. 3d 566, (2 Dept.

2004); Giordano v. Patel , 177 AD.2d 468 (2 Dept. 1991); and LJ. Handa. P. C. v.

Imperato , 159 AD.2d 356 (2 pt. 1990).

Excusable Default

The determination of what constitutes a reasonable excuse for a default lies

within the souriddiscretiollofthe trial court. Levi v. Levi , 46 AD. 3d 519 (2 Dept.

2007). See Hodges v. Sidial supra; Beniamin Nurse v. Figeroux & Assoc. supra;

Savino v. "ABC Corp. supra; Fladell v. American Red Magen David for Israel , 44

AD. 3d 897 (2 Dept. 2007); and Segovia v. Delcon Construction Corp. 43 AD.

1143 , 1144 (2 Dept. 2007).


When a party moves for a default judgment pursuant to CPLR 3215

, "

any

defendant who has appeared is entitled to at least five days ' notice of the time and place

of the application... " CPLR 3215(g)(1).

CPLR 21 03(b) provides that

, "

except where otherwise prescribed by law or order

of court, papers to be served upon a party in a pending action shall be served upon the

party s attorney. " If a party has not appeared by an attorney or the attorney cannot be

served , the party may be served. CPLR 2103(c).

Deutsche Bank argues that CPLR 21 03(e) provides that only parties that have

appeared are entitled to notice of subsequent proceedings and , pursuant to CPLR

321 (a), a party only appears by serving an answer , a notice of appearance or a motion

which would ext nd the ,defendant's time to answer. Furth rmq CP, 8j,4l99(

)"j

provides that "each paper served on any party shall be served on every other party who

has appeared... . A letter sent by counsel on behalf of a mortgagor to mortgagee after

service of a summons and complaint constitutes a notice of appearance. Dime Savings

Bank of New York, FSB v. Higner, 281 AD.2d 895 (4 Dept. 2001); and Leader Federal

Bank for Savings v. Van Tienhoven , 262 AD.2d 1078 (4 Dept. 1999).

An affidavit of service which sets forth the papers served , the person served , the-

date , time and place at which service was made and that the person who made service

was authorized to serve process constitutes prima facie evidence of service.

Remington Investments. Inc.. v. Seiden , 240 AD.2d 647 (2 Dept. 1997); and

Maldonado v. County of Suffolk , 229 AD.2d 376 (2 Dept. 1996). An affidavit of service


fails to be conclusive proof of service once defendant denies service in a sworn

statement. Friedman v. Ramlal , 282 AD. 2d 499 (2 Dept. 2001); and OCI Mortgage

Corp. v. Omar, 232 AD. 2d 462 (2 Dept. 1996). The party contesting service must

place before the court facts sufficient to rebut the presumption of service. See Kopman

v. Blue Ridge Ins. Co. , 296 AD.2d 479 (2 Dept. .2002); and Frankel v. Schilling , 149

AD.2d 657 (2 Dept. 1989). Conclusory denials of service are insufficient to raise

questions of fact rebutting the prima facie evidence of proper service contained in the

affidavits of service. 96 Pierrepont. LLC v. Mauro , 304 AD.2d 631 (2 Dept. 2003); and

Simmons First National Bank v. Mandracchia , 248 AD.2d 375 (2 Dept. 1998).

While Muscat states that he obtained a copy of the summons and complaint from

his tenant, who found it in their shared mailbox, and Deutsche Bank providesn

- - ----

affidavit of personal service upon Muscat , Muscat does not rest his excusable default on

any alleged lack of service of the summons and complaint and does not provide any

facts to the Court to rebut the presumption of service of the summons and complaint.

With respect to the notice of entry of the judgment of foreclosure and sale , Muscat does

not expressly state that he received a copy of these papers. He argues , however, that

Eschen never mailed the papers to Ziskinwhonappeared on his behalf when Ziskin

contacted Eschen. As a result , Eschen was required to serve Ziskin with all papers

pertaining to this action rather than upon Muscat in compliance with CPLR 2103(b).

It is within the discretion of the court to determine what is a reasonable excuse

for a default. Star Industries. Inc. v. Innovative Beverage. Inc. , 55 AD. 3d 903 , 904 (2


Dept. 2008). " In making its determination , the court should consider relevant factors

such as the extent of the delay, prejudice or lack of prejudice to the opposing party,

whether there has been willfulness , and the strong public policy in favor of resolving

cases on the merits. Thompson v. Steuben Realty Corp , 18 AD. 3d 864 (2 Dept.

2005). . While Muscat has not specifically alleged that law office failure is the cause of

the default, it is clear that he retained Ziskin , Ziskin billed Muscat and Muscat paid

almost $600 in August 2007 for services rendered in connection with the foreclosure

proceeding. Nevertheless , Ziskin did not file an answer or seek an extension of time for

Muscat to appear in the action. Thus , it can be construed that Muscat's reasonable

excuse is based upon law office failure.

The court has the discretion to excuse a, default resulting from law office failure.

See , CPLR 2005; Star Industries. Inc. v. Innovative Beverage. lnc: Bupra;' -and Gourdet

v. Hershfeld , 277 AD.2d '422 (2 Dept. 2000). An unsubstantiated and conclusory

claim of law office failure will not satisfy the requirement of a reasonable excuse for the

purposes of a motion to vacate. Star Industries. Inc. v. Innovative Beverage. Inc. supra.

Plaintiff argues that Muscat does not have an excusable default since , pursuant

to-ePtR 320(a), Muscat failed to appear in this action by either serving a notice of

- - - _

appearance , an answer or a motion which acts to extend the time to answer. Plaintiff

has neither argued nor established the existence of prejudice should the default be

vacated. In addition , Plaintiff was on notice that Muscat had retained an attorney to

represent him with respect to this litigation and Plaintiff made a choice to not serve the

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT et at.

Index No. 2992/07

attorney. In light of Muscat's retention of an attorney, his physical condition during 2007

and Muscat's lack of legal experience , Muscat's failure to appear was not

contumacious. Thus , the Court finds that Muscat has demonstrated an excusable

default.

Meritorious Defense

Muscat argues that he has a meritorious defense because the "bank was aware

that this residential mortgage would saddle me with a high principal balance. " (Muscat

Aff. 1118). In addition , he believes that "(t)he bank knew or should have known that my

income as a borrower could not support the monthly payments of principal and interest."

(Id.

).

He alleges defenses of predatory lending and unclean hands.

::-::::g

which predato lending

~~~

tute wa alle:edIYViolated

by Plaintiff and/or IndyMac. He ;bases his defense on allegations of high pressure

sales , misrepresentation of loan terms and offering him a loan that he could not afford

and which offered him no benefit. All of Muscat's allegations of predatory lending

pertain to either IndyMac or Jean-Baptiste , but not Plaintiff.

Plaintiff asserts that it is a holder in due course of the-Note-. UCC 3-302 defines a

holder in due course as a holder who takes a negotiable instrument (1) for value; (2)

good faith; (3) without notice that it is overdue or has been dishonored or of any defense

against or claim to it on the part of any person. There is no dispute that Deutsche Bank

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT et a/.

Index No. 2992/07

is a holder and that the Note is a negotiable instrument in that it sets forth the dollar

amount owed and includes a sum certain to be paid. See In re Apponline. Com. Inc

290 B. R.1 , 10 (E.D. Y. 2003).

An assignment of Muscat's mortgage from MERS to Deutsche Bank was

recorded with the Nassau County Clerk's Office on March 15 2007. The assignment

notes that the assignment was made " in consideration of TEN DOLLARS ($10. 00) and

for other good and valuable consideration paid by" Plaintiff. (Deutsche Bank Ex. P).

Thus , the prong of the test requiring value is satisfied.

Whether Deutsche Bank had notice that there was an issue with the Note, as

alleged by Muscat, is a subjective test requiring actual knowledge rather than an

objective test win or constructive knowled ge. Hartord Acc. & Inde

....

c,,",...

:..

American Express Co: , 74 N. 2d 153 , 162 (1989). There is no such evidence

submitted here by Muscat of Deutsche Bank's actual knowledge of any " issue" with the

Note. Thus , without actual knowledge that there was a claim against the Note or bad

faith on the part of Deutsche Bank in obtaining the Note, Deutsche Bank is a holder

due course.

Furthermore~E)eutsche Bank has produced documentation to establish that, at

the time the loan was made , MERS/lndyMac provided all of the necessary disclosures

to Muscat and he executed those documents. "A party that signs a document is

conclusively bound by its terms absent a valid excuse for having failed to read it."

Guerra v. Astoria Generating Co.. L.P. , 8 A.D. 3d 617 , 618 (2 Dept. 2004). See also

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT, et at.

Index No. 2992/07

Pimpinello v. Swift & Co. Inc. , 253 N.Y. 159 (1930). Included within the IndyMac loan

documents is a document entitled , U lndyMac Anti-Predatory Lending Disclosure . This

document discloses that IndyM c did not verify Muscat's income or assets by traditional

verification methods and the decision to grant the loan was based upon Muscat's credit

history and the proposed change in his monthly mortgage payment. The docume

indicates that, U(w)ithout verification of (Muscat's) income and/or asset value , it may be

difficult to fully assess the additipnal risk that may be associated with this mortgage.

(Deutsche Bank Ex. M). The notice then warns Muscat that if he cannot afford to make

the monthly mortgage payments , he could lose his home. The document also

discusses the fact that this was a cash-out refinance and that there was a prepayment

penalty, if Muscat pre-paid the loan. The document contail1s warnings about reducing

the equity in the home by "cashing out" some of the equity and also about having a loan

containing a pre-payment penalty. Muscat signed this document on July 1 , 2005.

Thus , it appears that Muscat cannot have a viable predatory lending affirmative defense

as against MERS/lndyMac.

Unclean Hands

The doctrine of unclean hands requires the defendant to prove that (1)the-

. plaintiff is guilty of immoral , unconscionable conduct; (2) the conduct was relied upon by

the defendant; and (3) the defendant was injured thereby. National Distillers and

Chemical Corp. v. Seyopp Corp. , 17 N.Y.2d 12 , 15- 16 (1966); and Kopsidas v.. Krokos

294 A.D.2d 406 407 (2 Dept. 2002). Unclean hands , a defense grounded in equity,

DEUTSCHE BANK NAT'L TRUST CO. v. MUSCAT et at.

Index No. 2992/07

cannot be invoked as an affirmative defense in an action at law. National Distillers and

Chemical Corp. v. Seyopp Corp. supra; and Manshion Joho Center Co.. Ltd. v.

Manshion Joho Center. Inc. , 24 A.D. 3d 189 (1 Dept. 2005). A mortgage foreclosure

action is an action grounded in equity. Notey v. Darien Construction Corp. , 41 N.

1055 (1977).

Muscat's allegations of u(lclean hands relate to actions by IndyMac and

HomeFunding; not Deutsche Bank. ere a defendant's allegation of unclean hands

relate to actions by non-parties and not to plaintiff's actions , there is no merit to such a

defense. Unger v. Leviton , 25 A.D. 3d 689 , 692 (2 Dept. 2006).

Since Muscat does not have a meritorious defense to the foreclosure action, his

motion must be denied.

- - -----

ORDERED , that the motion of Defendant, Anthony' Muscat , to vacate the

judgment of foreclosure and sale , dated August 22 , 2007 , is denied: and it is further

ORDERED , that counsel for Plaintiff shall settle an order on ten (10) days notice

to schedule the foreclosure pursuant to the judgment granted on August 22 , 2007.

This constitutes the decision and order of this Court.

Dated: Mineola , NYMarch 17 2009

J?A &0=Hon. LEONARD B. AUSTIN

ENTEREDMAR 1 9 2009

NASSAU COUNTY;COUNTY CLERK' S OFFICE

Documents

INDEX [decisions.courts.state.ny.us]decisions.courts.state.ny.us/10jd/nassau/decisions/index/...Eschen mailed Feldman, Fein Such & Crane, attorneys for National, and Muscat a notice