Fin. Freedom Acquisition LLC v. Jackson, No. 8473/2011.

CourtUnited States State Supreme Court (New York)
Writing for the CourtCHARLES J. MARKEY
Citation2012 N.Y. Slip Op. 52358,38 Misc.3d 1204,969 N.Y.S.2d 803
PartiesFINANCIAL FREEDOM ACQUISITION LLC v. Evelyn L. JACKSON a/k/a Evelyn L. Jackson Brooks, et al.
Decision Date24 December 2012
Docket NumberNo. 8473/2011.

38 Misc.3d 1204
969 N.Y.S.2d 803
2012 N.Y. Slip Op. 52358

FINANCIAL FREEDOM ACQUISITION LLC
v.
Evelyn L. JACKSON a/k/a Evelyn L. Jackson Brooks, et al.

No. 8473/2011.

Supreme Court, Queens County, New York.

Dec. 24, 2012.


Stein, Wiener & Roth, LLP, by Gerald Roth and Robert Sambursky, Esqs., Carle Place, for the Plaintiff.

Christina Cline, Esq., Garden City South, Guardian Ad Litem.


CHARLES J. MARKEY, J.
+-----------------------------------------------------------------------------+
                ¦Papers Numbered and Read: ¦ ¦
                +---------------------------------------------------------------------------+-¦
                ¦Report of the Guardian Ad Litem Christina Cline, Esq ¦1¦
                +---------------------------------------------------------------------------+-¦
                ¦Affirmation of Services by Christina Cline, Esq., dated December 9, 2012 ¦2¦
                +---------------------------------------------------------------------------+-¦
                ¦The Court's prior order dated October 26, 2012, and entered on November 19,¦3¦
                ¦2012 ¦ ¦
                +-----------------------------------------------------------------------------+
                

In a sua sponte decision by the undersigned, dated October 26, 2012, and entered on November 19, 2012, the Court observed that the plaintiff financial institution submitted a proposed order for this Court's consideration to name a referee to compute sums allegedly due to the plaintiff in this mortgage foreclosure case.

In that decision, and based on a review of the plaintiff financial institution's papers, the undersigned already had grave concerns on the legitimacy of the service of process and the mental condition of the homeowner who was confined to a nursing home. In that order, this Court decided to appoint Christina Cline, Esq., a distinguished lawyer with an expertise in elderly law to act as the guardian ad litem for defendant Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks. The Court asked Ms. Cline to make an extensive investigation and submit proposed findings, recommendations, and conclusions. Finally, the Court set Ms. Cline's fee at $275.00 fee per hour, plus expenses, and such fees and expenses shall be paid to her by the plaintiff. The hourly fee is modest when Ms. Cline's professional credentials and significant experience are taken into consideration.

Ms. Cline, taking her fiduciary appointment with admirable seriousness of purpose, set forth on her appointed task immediately, overcoming considerable time constraints and permitted the appointment to override her other pressing matters. The Court is impressed with the extensive report submitted by Ms. Cline, her investigation and recommendations. The Court adopts Ms. Cline's report in all respects, without exception, as though it were made by the undersigned. The Court ratifies and adopts all of the findings and conclusions contained therein. In brief, the results of Ms. Cline's investigation confirmed all of the undersigned's worst fears and suspicions when the Court issued its order in October.

The case law is already expansive on the rampant abuses in the mortgage foreclosure field. Documentary filmmaker Joel Sucher, in a series of articles for American Banker, Huffington Post, and in several other blogs available on the internet, has been an eloquent champion against the bullying, corrosive, and abusive tactics used by “servicers” of mortgages in debt. In one article dated March 26, 2012, for American Banker, entitled “Behind Every Distressed Asset' Is a Distressed Human Being,” Joel Sucher, whose forthcoming film is entitled “Foreclosure Diaries,” concerning the current financial crisis, states:

“I'm intrigued by the Orwellian phraseology that megabanking executives and the mortgage industry have coined to describe their work. They trade, for instance, in ‘distressed assets.’

“What's a distressed asset? From what I understand, an asset, like a subprime mortgage, is distressed because it fails to churn out the revenue stream it was originally supposed to produce. But post-crash, with a nod to obfuscation, ‘distressed assets' have become ‘legacy assets.’

“It doesn't take [contemporary Italian essayist and philosopher] Umberto Eco to figure out the real meaning of these dehumanizing terms: for the millions of people whose assets—their homes—are underwater, it's their lives that have become truly distressed.”

The Court will quote extensively from the report of Christina Cline, Esq., because the abuses that occurred in the case at bar would have overwhelmed a powerless individual such as defendant Evelyn Jackson, had the undersigned's earlier apprehensions not been aroused leading to the appointment of Ms. Cline. Ms. Cline's report to the Court, in pertinent part, states:

INTEREST OF MY WARD

2. My ward owns one half share of the property which is the subject of this foreclosure action. There is nothing in the court file that indicates that my ward is the sole owner. A view of the ACRIS records does not reveal how the property is held.

BACKGROUND

3. This action is one of FORECLOSURE upon a reverse mortgage. The defendant, EVELYN L. JACKSON, a/k/a EVELYN L. JACKSON BROOKS, and Harding Brooks allegedly signed a mortgage agreement with FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of Lehman Brothers Bank, FSB on May 21, 2004.

4.The mortgage allowed for an indebtedness of $475,000.00 with interest. At the closing the following payments were made: $215,745.00, Initial Payment of the loan which consisted of: $16,668 .00, closing costs; $142.150.86, payment of liens; $53,285.71, loan advance; $3,640.43. At the time the action was commenced there was a balance due to Plaintiff in the amount of $217,225.40.

5. On February 21, 2010, Harding Brooks died.

6.On March 9, 2011, FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of LEHMAN BROTHERS BANK, FSB assigned the mortgage to Plaintiff, FINANCIAL FREEDOM ACQUISITION.

DEFAULT on the MORTGAGE

7.On October 13, 2010 the assignee of the Mortgage, Financial Freedom Acquisition, L. L.C. sent a letter entitled “Home Equity Conversion Mortgage Repayment Notice” addressed to Evelyn L. Jackson–Brooks at 109–14 177th St. Jamaica, New York 11433. In part the letter states “Upon the occurrence of a maturity event, including the borrower's decision to permanently leave and no longer occupy the subject property as a primary residence, the loan becomes due and payable.” It continues in the second paragraph, with information and assistance to which the borrower is entitled. Defendant, EVELYN L. JACKSON defaulted on the mortgage.

8. A Lis Pendens was filed in April 2011.

9. Plaintiff filed a summons and complaint in Queens Supreme Court.

10.Defendant did not appear in the action nor did she submit an answer in the action.

11. Plaintiff submitted a motion for an Order of Reference upon which the Court issued an Order appointing your affiant in connection with the motion.

INVESTIGATION

12.My ward, EVELYN L. JACKSON, the defendant in this action, currently resides at the Hollis Manor Nursing Home located at 191–06 Hillside Ave. Hollis, N.Y. 11432, having been placed in the facility on May12, 2010, by her son, Will Jackson. Her admitting diagnosis in 2010 was Alzheimer's disease, macular degeneration, seizure disorder, and hypertension.

13. Prior to...

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