Defense of claims of fraud & statutory violations in foreclosure & collection suits, risk management & corporate advice.
Kelsey v CitiMortgage 2010 WL 2010754 [NJ Super Ct App Div May 19, 2010]
KATZ & RYCHIK P.C. successfully defended an appeal by Plaintiff in which the lower court dismissed the Plaintiff’s Complaint. The Court found the Plaintiff did not contest the fact that the claims arose out of Defendant’s alleged violation of bankruptcy’s automatic stay, as such, the Federal Bankruptcy law applies and preempts any state law claims.
CitiMortgage v Lee Docket F-50138-09 March 14, 2011 (NJ Super Ct)
After the court had previously granted summary judgment for it client, K&R successfully defeated defendant’s motion for reconsideration. The court found that the Defendant failed to establish a basis for reconsideration as he had not shown any “newly discovered” evidence. The court further found that Plaintiff had standing to sue not withstanding Fannie Mae’s ownership of the note as Plaintiff was the servicer.
CitiMortgage v Lee Docket F-50138-09 February 24, 2010 (Nj Super Ct)
Defendant filed a motion to dismiss on the basis that Plaintiff lacked standing. Representing the Plaintiff, KATZ & RYCHIK P.C. defeated the motion and established that the complaint properly alleges that the Plaintiff had standing to sue and was not required to attach the note and assignment to the complaint, rather, the note and mortgage are only required to be annexed for the entry of final judgment.
Associates First Capital Corp. v Wiggins 75 AD3d 614, 904 N.Y.S.2d 668 (2d Dept 2010)
In an action to foreclosure a mortgage, K&R represented the Plaintiff before the Appellate Division, Second Department in which the court upheld the lower Courts decision in our client’s favor. The Court also denied Defendant’s motion to vacate the judgment of foreclosure and sale due to lack of personal jurisdiction. Without the need for a hearing, the Appellate Division, Second Department found that bare and conclusory denials of service were insufficient to rebut the prima facie proof of proper created by the process server’s affidavit and as such no hearing was required.
CitiMortgage v Lunger 3758/2010
The court held that KATZ & RYCHIK P.C. met its burden and demonstrated its entitlement to Summary Judgment. K&R demonstrated that CitiMortgage, Inc. had standing to bring the action as it had physical possession of both the original note and mortgage at the time the action was commenced and has retained possession of the original note and mortgage since. K&R was successful despite defendant’s conclusory assertions that Plaintiff did not have standing because the loan was owned by Fannie Mae, and that CMI cannot establish ownership by way of the MERS assignment.
Wheeler v Citigroup 938 F.Supp.2d 466 (2013)
The firm obtained a dismissal of an action brought by Plaintiff in Federal court alleging a variety of causes of action including breach of contract for failing to provide a Home Affordable Modification Program (“HAMP”) modification and that CitiMortgage lacked the authority to commence the foreclosure action. The Court found in our clients’ favor and dismissed the action asserting that K&R properly demonstrated that HAMP does not provide a private right of action and therefore no Federal question exists. The Court further held that there was no diversity and therefore the Court lacks subject matter jurisdiction. The Plaintiffs sought to amend the Complaint to obtain subject matter jurisdiction which Katz & Rychik P.C. successfully opposed as well.
Citibank, N.A. v Swiatkowski 98 Ad3d 555, 949 N.Y.S.2d 635(2d Dept 2012)
This office represented Citibank in a foreclosure action. The Court upheld the lower court’s decision. The Defendant Swiatkowski moved to vacate the prior judgment entered against him asserting lack of standing. K&R successfully argued that the Defendant had waived standing when it failed to raise the issue in either his answer or in a pre-answer motion to dismiss.
CitiMortgage, Inc. v Phillips 82 AD3d 1032 (2011)
KATZ & RYCHIK PC represented CitiMortgage in an action that was appealed to the Appellate Division, Second department. The Court held that the Supreme Court properly denied, without a hearing, the defendant’s motion to vacate a judgment of foreclosure and sale on the ground of lack of jurisdiction. The affidavit of the plaintiff’s process server constituted prima facie evidence of valid service of the summons and complaint.
CitiMortgage v.Goldberg 131709/2010
KATZ & RYCHIK P.C. represented CitiMortgage. Inc. in a foreclosure action and successfully demonstrated it was entitled to Summary Judgment for a Freddie Mac owned loan which contained a MERS assignment. The Court agreed with K&R that CitiMortgage had standing to foreclose as the holder and servicer of the loan based on the documentary evidence provided including a transfer letter to ABN AMRO from the originating lender and the endorsed note. Opposing counsel had argued, to no avail, that there was no evidence that ABN AMRO (which had merged with CitiMortgage) had possession of the note prior to the merger.
Swiatkowski v Citibank 745 F. Supp. 2d 150 (E.D.N.Y. 2010) aff’d, 446 F. App’x 360 (2d Cir. 2011)
Katz and Rychik P.C. successfully dismissed an action, on multiple grounds, against Citibank by the Swiatkowski’s alleging violation of their rights and RICO violations. K&R moved to dismiss plaintiff’s complaint as barred based on the Rooker-Feldman doctrine and by the doctrines of collateral estoppel and res judicator. The court agreed with K&R in all respects. The Court held that the Rooker-Feldman doctrine which stands for the proposition that “lower federal courts possess no power whatever to sit in direct review of state court decisions” applied to the instant case since it was relating to an attempt to overturn the a Judgement of Foreclosure and Sale dated October 13, 2005 previously granted in Supreme Court. The Court further held that K&R successfully demonstrated that Plaintiff’s arguments are also barred based on collateral estoppel, issue preclusion, and res judicator, claim preclusion.
Grilikhes v. international Tile & Stone Show 90 A.D.3rd 480, 934 N.Y.S.2d 384 (1st Dep’t. 2011)
Appellate Division, First Department affirms the grant of summary judgment to K& R’s client, Metropolitan Exposition Services, Inc. (“MES”) on the basis that Plaintiff was a “special employee” of MES, even though he was on the payroll of defendant New York Convention Center Development Corporation (“NYCCOC”).
Plaintiff, Bruce Grilikhes allegedly sustained injuries as a union carpenter while dismantling a vendor’s booth for MES at a trade show at the Jacob Javits Convention Center. While NYCCOC issued plaintiff’s paycheck and paid workers compensation benefits, MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment. Plaintiff testified at his deposition that he considered MES his supervisor and MES similarly testified that it determined plaintiff’s work hours and work detail. MES also had the right to instruct NYCCOC not to send the worker back to the show.
The Court concluded, as a matter of law, that MES was plaintiff’s “special employer” and therefore plaintiff’s Labor Law claims were barred under the Workers’ Compensation Law. The grant of summary judgment was unanimously affirmed.
Pinto v. Metropolitan Opera 61 A.D.3rd 949, 877 N.YS.2d 470 (2d Dep’t. 2009)
Second Department upholds lower court’s finding that the defendants were entitled to judgment as a matter of law by presenting sufficient evidence that Lincoln Center for the Performing Arts, Inc. (“Lincoln Center”), owner, and Metropolitan Opera, its operator, neither created nor had actual or constructive notice of an accumulation of water.
Plaintiff, a patron of the opera house fell on an accumulation of water at the foot of a staircase. She argued that water on the floor was a recurring condition in rainy/snowy weather and that the defendants were or should have been aware of that dangerous condition, sufficient for liability. The lower court disagreed and so did the Appellate Division. Upon K& R’s legal brief and oral arguments it held that proof of this general condition would not be sufficient to establish constructive notice of the particular condition causing plaintiff’s fall.
Fouchecourt v. Metropolitan Opera Association 537 F. Supp.2d 629 (S.D.N.Y. 2008).
Federal court grants K& R’s 12(b)(6) motion and dismisses noted opera performer’s personal injury suit for injuries sustained during production of “Falstaff.”
In this matter pending in the Southern District of New York, Judge Denny Chin found plaintiff to be covered by the definition of “employee” within the Workers Compensation Law. The Court found the legislative history cited by K & R to be determinative of the statute’s clear intent to cover performers like plaintiff. The court additionally cited to plaintiff’s receipt of benefits under the Met Opera’s workers’ compensation insurance . It found that Fouchecourt was an “employee” and therefore barred by the exclusivity provisions of the statute from bringing the lawsuit.