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Adam Leitman Bailey, P.C. Defeats Law of the Case Doctrine Argument and wins Summary Judgment for Note Holder in Highly Contested Foreclosure Proceeding


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In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee v. Zaks, et al., a highly contested foreclosure proceeding in Rockland Supreme Court, Adam Leitman Bailey, P.C. won a motion for substitution, summary judgment, and an order of reference in favor of the Plaintiff by sufficiently establishing the Note Holder’s entitlement to judgment as a matter of law.

The subject note and mortgage were assigned to the originally named Plaintiff Lender prior to commencement of the action by endorsement on, and physical delivery of, the Note and by assignment of mortgage.

The note and mortgage were then further assigned by the named Plaintiff Lender during the pendency of the action, and Adam Leitman Bailey, P.C. was retained to represent the current Note Holder.

Included amongst the Borrower’s several affirmative defenses to the action was a challenge to the Plaintiff Lender’s standing via the Borrower challenging the validity of the written assignment of mortgage to the Plaintiff Lender.

Prior to Adam Leitman Bailey, P.C.’s retention, the Plaintiff Lender unsuccessfully moved for summary judgment, with the Court finding (in light of the Borrower’s defense) that the Borrower raised triable issues of fact regarding the validity of the written assignment of the mortgage to the Plaintiff Lender, and the action was resultantly stalled and then marked as disposed.

Upon being retained to take over, Adam Leitman Bailey, P.C. immediately moved to restore the action, and, during argument, procured permission from the Judge to re-file for summary judgment.    

Adam Leitman Bailey, P.C. then filed a summary judgment motion that clearly set out the Plaintiff’s standing to commence the action and further established the current Note Holder’s standing to continue the prosecution of the action.

In opposition, the Borrower argued that the Court’s prior order denying summary judgment due to triable issues of fact regarding the validity of the written assignment of mortgage constituted the law of the case.

Adam Leitman Bailey, P.C., however, successfully argued that the basis for the Court’s denial of the prior summary judgment motion was not based upon a valid legal ground and, more importantly, did not establish any law in the case that would prevent the current summary judgment motion from being granted.

Specifically, Adam Leitman Bailey, P.C. argued that a written assignment of mortgage was not necessary, since the Note and Mortgage were validly assigned to the Plaintiff prior to commencement of the action by both endorsement on, and physical delivery of, the Note, and, as such, the Mortgage passed with the Note as an inseparable incident.

Persuaded by Adam Leitman Bailey, P.C.’s arguments, in a decision and order dated October 7, 2016, Judge Victor J. Alfieri, Jr. granted the motion in its entirety and expressly rejected the Borrower’s standing arguments.

Jackie Halpern Weinstein, Esq. and Jessie D. Bonaros, Esq. of the Foreclosure Group and Jeffrey R. Metz, Esq. of the Appeals Department at Adam Leitman Bailey, P.C. won this motion for the Note Holder.        

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Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS