1 STATE OF NEI,V YORK

2 COT]NTY OF MONROE SUPREME COURT

4 WELLS FARGO BANK, NA, rNDEX #2009-0441,9

5 Plainti f f,
6 versus Oral Argument
7 KEVIN PATRICK BRADY,

8 Defendant.
9
Hall of ,Justice
10 Rochester, New york L46I4
,-Tune t9, 2013
11 BEFOR E:

L2 HONORABLE JOHN J. ARK,

3 13 Supreme Court Justice.
L4 APPEARANCE S:

15 HOGAN LOVELLS, LLP

Attorneys for the plaintiff
1,6 BY: JONATHAN SAMON, ESe., of Counsel
1,7

1_8 KEVIN PATRICK BRADY

Defendant
L9 Appearing pro Se

20

2L

22

23 Carol P. Raes, C.S.R.

1
Senior Court Reporter
I 24

25
 1 THE COURT: yes, sir, what's your name?
2 I4R. SAMON: ,Jonathan Samon wiLh Hogan Lovells,
3 counsel for PlainLiff We11s Fargo.
4 THE COURT: T just received your affirmation.
5 What's your position? Are you Mr. Brady?
6 MR. BRADY: Yes.
7 THE COURT: you've made a motion. WhaL relief
8 are you requesting?
9 MR. BRADY: That the judgrment actually
1_0 default judg.ment.s of 2009 and '10 be vacat.ed.
1_1 THE COURT: A11 right. ft ' s June 1_9 , 201"3 .

L2 ft's three years later.

,p
13 MR. BRADY: That's when judgrment.s were issued
L4 or signed.
15 MR. SAI4ON: your Honor, f 'm not sure it,s a
16 default judgrment.. your Honor had previously granted an
L7 order of Ref erence and Jud.grment of Foreclosure and sale.
18 The issue on the order to show cause today rerates to
L9 plaintif f 's standing. standing was raised and decid.ed on
20 the underlying motion. rt was before the Court. in the
2L 2009 order of Reference and the 2010 ,Jud.gnnent of
22 Foreclosure and sale, and it's our position that Lhe
23 matter is this present matter is barred by res
1
,fl
24 judicata. Defense has been raised. and d.ecided. Finality
25 rs requi-red at t.his late date.
 I THE COURT: Mr. Brady, di_d you ever file a

2 Notice of Appeal?
3 MR. BRADY: I -- f think so. I'm not sure.
4 THE COURT: What was the result of that?
5 MR. BRADY: I'm not sure.
6 THE COURT: Do you know whether a Notice of
7 Appeal was filed?
8 MR. SAMONi I, too, am not certain. We were
9 not counsel at the time, so |m not, entirely cerLain. rf
10 it was, it was never perfected. There was no appeal
11 heard, if a Notice of Appeal was filed.
L2 MR. BRADY: Judge, this is based upon new
T 13 evidence anyway.
L4 THE COURT: What's the new evidence?
l-5 MR. BRADY: The new evidence is a third
1-6 affirmation. can r give this to the ,Judge, please? And
L7 he has a copy.
18 MR. SAMON: I do.
L9 (Document was handed up to the Court. )

20 MR. BRADY: There was a third affirmation that

2L was entered in July of 20LL, and that thaL says that
22 they transferred the assignment. we1ls Fargo transferred
23 it to a trust, and they d.idn't, specify a date LhaL that
E.
s 24 transfer took p1ace, but in order to be in that Lrust, iL
25 wourd have had to have been before February 1sL, 2005.
 I Now, it's my conLention that considering that, a1l of
2 these Affidavit.s of Assigrnment are--how do r want to say
3 this?--fraudulent; that there is no history. There is
4 nothing to show that wells Fargo had standing Lhen or
5 now.

6 Now, the package t.hat I gave t.o you is the

7 first assignment and -- r'm sorry, that,'s the second one,
8 in .Tanuary. I have to correct myself . I,m sorry. I'm
9 referring to the first assignment that is allegedly made
10 in 1-998, signed by Talin Gheyvandian as Vice presid.ent of
11 Fleet Mortgage. Not so.
1_2 THE COURT: What's newly discovered about
13 t.hat ?

L4 MR. BRADY: Wel1, the third one is newly

15 discovered.
L6 THE COURT: Which is t.he third one?
T7 MR. BRADY: That is dated July 6th, 20LL.
18 This is where wells Fargo claims that they assigned the
1_9 rights. rt doesn't give a d.ate. They just assigned the
20 rights over t.o the trust, and. what |m trying to say is
2L if that's true, it would have had to have been before
22 February l-st. of 2005.
23 THE COURT: What's newly discovered about
-\
a
:) 24 this?
25 MR. BRADY: The assigrnment.
 1 THE COURT: Right.
2 MR. BRADY: Wel1, it wasn't available until
3 2011. That's when I found it. That's when they filed
4 ir.
5 THE COURT: You found it on .Tuly L2th, 2011,?

6 MR. BRADY: This is when Wells Fargo filed it

7 at the County Clerk.
I THE COURT: Right. It was fited in the County
9 Clerk' s of f ice on July 1-2, 20LL?
10 MR. BRADY: Right.
11 THE COURT: When did you find itr
1"2 MR. BRADY: I think about a year later.
:p
13 THE COURT: So that would have been .Tuly lzth,
L4 20L2?

1_5 MR. BRADY: Yes .

r_6 MR. SAIION: your Honor, if f may respond, with

L7 respect to the earlier assigrnmenLs of the mortgage,
18 specifically the 1ast, one raised from Fleet Mortgage
1_9 corporat.ion, that's just merely a conclusory allegation
20 that it was not sigrned by the vice president. There is
2L no evidence put in that there's anything f rauclurent with
22 respect to that assigrnment or the other assignments.
23 With respect. to anything related to the trust
?.

/! 24 agreements, Mr. Brady has no standj-ng to assert any

25 vioration of the trust agreements as he's noL a party to
'b-^
9
;# 1 t.hem or third-party beneficiary.
2 And to your point, wiLh respect to the
3 newly-discovered evidence, Lhere is no there has been
4 no demonstration that if I could quote the exact
5 language of the statute, "that the motion v/as brought
6 within a reasonable time and was,, -- excuse me, "and.
7 could noL, despite due diligence, have been discovered
8 earlier. " As you know, the assignment was recorded in
9 July of 201,1,, and here we are in ,June 2012. The Ord.er to
10 Show --
1- 1- THE COURT: 20L3.
L2 MR. SAMON: Excuse me, 2013. The Order to
1-3 Show Cause was brought in April of 20L3, underst.andably
1"4 prior Lo .fune but sti11 April of 20t3, subsequenL to the
15 July 20LL recording.
t6 THE COURT: Would that assignment make any
L7 difference?
1_8 MR. SAMON: We believe no. Standingr was
l_9 det.ermined at the time of the action. rt was raised,
20 considered, determined. There was an assignment of
2L mortgage t.o welrs Fargo. There was a note endorsed in
22 blank to t.heir f orebearer paper. standing was aL issue
23 and necessarily determined.
\ 4 24 MR. BRADY: There were no issues acLually
25 det.ermined then. That's why I say it's a defaulL
 1 judgment. because for some reason, this Court just
2 overlooked everything that f put in my Arrswers. I
3 challenged standing then on the basis of frauclulent
4 affidavits and they are, as you can see.
5 THE COURT: Very we11. What we'11 Co is we'll_
6 revier,v these documents and notify you of a clecisi-on. I
7 have your address, Counsel?
I MR. SAMON: My address is on our papers. We

9 did file a Notice of Appearance as well lvith the County

1-0 Clerk.
11 THE COURT: Very well You're r,vith Hogan
L2 Lowells?
p
13 MR. SAMON: Correct.
t4 THE COURT: Very we1l. We,ll notify you.
L5 Thank you all for comingr in.
L6

L7 CERTIFTED 'IO BE A TRUE AND ACCURATE TRANSCRIPT

18

L9

20 CAROL P.
dl
RAtrS,
(t-- I

C.S.R., Senior Court Reporter

2L

22

23

I 24
rr-

25
NOTEABLE COMMENTS FROM TRANSCRIPTS

Nov. 30, 2016

Ark appears not knowing the issues subjudice, He acquiesces all inquiries to opposing
attorney. He asks ‘when is the last time you made a mortgage payment?

Pg 2 He asks again, ‘when is the last time you made a mortgage payment?

pg7 [with sarcasm] ‘you can submit whatever you want. {he may not read it]

pg 11 Defendant necessarily informs Ark that the Rules have changed.

pg 13 Mullen admits that initial attorney, John Belluscio, appeared on a per diem basis

pg 14 BRADY; I want to overturn the sale.

February 23 2017. ,

pg 4 Ark asks again “when is the last time you made a mortgage payment?

pg 10 Brady advises Ark of New York Trust/Estate Law

pg 11 Ark claims; ‘the court has never ignored your legal rights? And ‘you’ve had plenty
of opportunities to challenge’. Incredibly he says ‘the court has studied the case and
found it an appropriate foreclosure case,

Pg 12 The courts demeanor demonstrates the steamrolling I have suffered. Arks

questions and comments have always implied that Defendants agenda is to obtain ‘ a
free house’ despite that that is precisely what he awarded to Wells Fargo Bank on
allegations alone and on obviously manufactured mortgage assignments.
 1

1 SUPREME COURT OF THE STATE OF NEW YORK

2 COUNTY OF MONROE

3 ----------------------------------------X

4 WELLS FARGO BANK NA, : Index No.

5 Plaintiff, : 2009/04419

6 -vs- :

7 :

8 KEVIN PATRICK BRADY, :

9 Defendant. : ORDER TO SHOW CAUSE

10 ----------------------------------------X

11 Hall of Justice
Rochester, New York
12 November 30, 2016

13
BEFORE: HON. JOHN J. ARK
14 Supreme Court Justice

15

16 APPEARANCES: WOODS OVIATT GILMAN LLP

By: RICHARD S. MULLEN, ESQ.
17 Attorney for the Plaintiff

18 KEVIN BRADY
Pro Se Defendant
19

20

21

22

23

24 REPORTED BY: ELLEN K. DeVITO, CSR, RPR

Senior Court Reporter
10:01:57 25
 2

1 THE COURT: Wells Fargo Bank vs. Brady.

2 MR. MULLEN: Good morning, your Honor.

3 THE COURT: Yes, sir.

4 MR. MULLEN: Richard Mullen from Woods Oviatt

10:02:06 5 Gilman on behalf of the Wells Fargo Bank.

6 THE COURT: Mr. Brady?

7 MR. BRADY: Yes.

8 THE COURT: What's your -- what are we here

9 today for?

10:02:13 10 MR. BRADY: Well, there's a couple things.

11 First of all, I am looking back over the years

12 and I'm realizing that I -- how short-shrifted I have

13 been in this case. And, you know, I invested like

14 $170,000 in a house, and I'm just going through the

10:02:44 15 figures and I can't resolve them. So this is really for

16 an accounting so that I can understand how this thing all

17 settles out.

18 Do you understand what I'm saying?

19 THE COURT: You paid a $170,000. When's the

10:03:04 20 last time you made a mortgage payment?

21 MR. BRADY: I'm out of my house.

22 THE COURT: Pardon?

23 MR. BRADY: I'm out of the house.

24 THE COURT: Well, has the house been sold?

10:03:12 25 MR. MULLEN: It was reverted back to the bank,

 3

1 your Honor, at the foreclosure sale.

2 THE COURT: So the bank's entitled?

3 So the bank is entitled now?

4 MR. MULLEN: Correct.

10:03:18 5 THE COURT: What's the status of the property

6 though?

7 MR. MULLEN: At this point the referee's deed

8 has been recorded. There was an eviction that was

9 proceeded through and Mr. Brady is out of the home. And

10:03:28 10 my understanding is it's not yet up for resale at this

11 point. That will be the eventual end game, but at this

12 point it's not --

13 THE COURT: When the house is sold?

14 MR. MULLEN: Right. So the house will

10:03:39 15 eventually be remarketed and sold at some point.

16 THE COURT: All right. Do you have any idea

17 what the timing is on that?

18 MR. MULLEN: I have no idea, your Honor. That

19 can depend if there's repairs needed. There's a lot of

10:03:50 20 different variables in that. I don't have a timeframe

21 for that.

22 THE COURT: You're not living -- where are you

23 living now, Mr. Brady?

24 MR. BRADY: Judge, the house is not sold. It

10:04:00 25 can't be sold.

 4

1 THE COURT: Why can't it be sold?

2 MR. BRADY: Well, because the bank, the

3 original bank, Wells Fargo, has never produced the note

4 to secure the loan. So they can't sell this property

10:04:29 5 with a credit bid. You know, all of the arguments that I

6 can make, I would prefer to put them in writing so that

7 we are all on the same page. I don't want to wing it.

8 THE COURT: There's a referee's deed that's

9 been filed?

10:04:50 10 MR. BRADY: I haven't seen one.

11 MR. MULLEN: I do have a copy of the executed

12 referee's deed. It has been filed, I'm sure, because the

13 eviction went through in city court, so it had to be

14 filed.

10:04:59 15 And I can note for the Court that a mortgage

16 payment wasn't made since October 2008.

17 At this point the foreclosure sale, as I put in

18 my papers, occurred more than 90 days ago, so there's no

19 deficiency judgment that can be pursued against Mr. Brady

10:05:16 20 at this point. The bank took possession of the property

21 because there was no other bidders at the foreclosure

22 sale, which is the basic sub of foreclosure. If the

23 payments aren't made and a foreclosure proceeds, nobody

24 bids at the auction, the bank gets the property back, and

10:05:30 25 that's what occurred in this instance.

 5

1 THE COURT: Do you have a -- what was the

2 arrearage at the time?

3 MR. MULLEN: At the time of sale?

4 THE COURT: Right.

10:05:37 5 MR. MULLEN: The total amount due at the time

6 of sale was roughly -- and this includes the principal

7 balance in that, so I don't have a complete breakdown of

8 the arrears, but the payoff quote was roughly 142,000.

9 The unpaid principal at the time was $61,089.55. There's

10:05:58 10 a large escrow advance of over 41,000, because, again, no

11 payments have been made in eight years, along with

12 interest and a small amount of property inspections that

13 were going on throughout the time of the default too.

14 THE COURT: So the principal balance was

10:06:15 15 61,089?

16 MR. MULLEN: Dollars and 55 cents, that's

17 correct, your Honor.

18 THE COURT: Okay. And escrow advances, that

19 would be for the --

10:06:23 20 MR. MULLEN: For the taxes, your Honor.

21 THE COURT: Taxes and insurance, I assume.

22 MR. MULLEN: Correct.

23 THE COURT: That's about 41,000?

24 MR. MULLEN: $41,340.01 since the date of

10:06:31 25 default, your Honor.

 6

1 THE COURT: 41,340.01?

2 MR. MULLEN: Correct.

3 THE COURT: Okay. And what was the accrued

4 interest?

10:06:39 5 MR. MULLEN: The total accrued interest from --

6 through 6/1 of '16 was 13,796.12.

7 THE COURT: This was good through 6/16?

8 MR. MULLEN: Correct. And that's -- that was

9 good through 6/1/16. The sale date was on 5/23/16, so...

10:07:00 10 I don't have any figures after that because at

11 that point, again, the property was reverted back to the

12 bank.

13 THE COURT: And what was the date of the sale?

14 MR. MULLEN: 5/23/16.

10:07:07 15 THE COURT: 5/23/16.

16 MR. MULLEN: Correct, your Honor.

17 MR. BRADY: And it was actually held, not

18 just --

19 MR. MULLEN: It was actually held, sir.

10:07:11 20 MR. BRADY: All right.

21 MR. MULLEN: We had a -- there's been -- a

22 referee's filed a report, filed a surplus money form.

23 Everything was done in accordance with the RPAPL

24 sections.

10:07:22 25 And also Mr. Brady was noticed of the sale, was
 7

1 able to attend the sale if he wished. My office did

2 attend the sale, along with the referee. It was filed

3 as, again, the report of sale, deed, et cetera.

4 THE COURT: The --

10:07:38 5 MR. BRADY: Well, I take the position that the

6 sale is voided and it has to be reversed, and I'll tell

7 you why in writing.

8 THE COURT: Well, you can submit whatever you

9 want.

10:07:53 10 MR. BRADY: The deficiency --

11 THE COURT: How much did the bank bid in on it?

12 I assume probably --

13 MR. MULLEN: The initial bid was -- which the

14 bank bid was $73,470.

10:08:06 15 THE COURT: There weren't any other bids?

16 MR. MULLEN: No other bidders, your Honor,

17 that's correct.

18 THE COURT: So the bank bid in for 73,470.

19 MR. MULLEN: Correct, your Honor.

10:08:15 20 THE COURT: And the deficiency -- or the amount

21 owed was about approximately 116,000.

22 MR. MULLEN: Give or take. Plus, there's

23 attorney's fees and costs in that that were included, so

24 about 122,000 was the final report.

10:08:30 25 MR. BRADY: Well, this --

 8

1 MR. MULLEN: And the referee did --

2 MR. BRADY: -- accounting --

3 MR. MULLEN: -- indicate, again, there was no

4 other bidders and that the property reverted back to the

10:08:38 5 bank after the initial bid.

6 MR. BRADY: All of this accounting was supposed

7 to have been done by the referee.

8 MR. MULLEN: The referee's the one that --

9 MR. BRADY: Who did it?

10:08:48 10 MR. MULLEN: -- provided all these documents.

11 Again, in his Order to Show Cause he's claiming

12 he didn't have the right to a referee's hearing and et

13 cetera, but the judge of the foreclosure and sale was

14 granting this action back in October 2010. He's bringing

10:09:00 15 all these issues up six years later, your Honor. I don't

16 know how many times I've been here, and people from my

17 office, on this case.

18 We've gotten through the foreclosure after

19 eight years. The property was sold at a public auction.

10:09:11 20 There was no other bidders besides the bank. It went

21 back to the bank. There's been no movement for a

22 deficiency judgment against Mr. Brady. Pursuant to the

23 RPAPL, after 90 days we can no longer do that. The sale

24 was in May. We're in November now, almost December. We

10:09:26 25 can't pursue deficiency. We're not pursuing deficiency.

 9

1 All these figures were reviewed by the referee. He has

2 file his report of sale, a deed, et cetera, as I've

3 explained.

4 THE COURT: Do you have a copy of the referee's

10:09:37 5 report?

6 MR. MULLEN: I do, your Honor. If I may

7 approach.

8 THE COURT: Do you have a copy for Mr. Brady?

9 MR. MULLEN: I don't with me. I can send him

10:09:45 10 one, your Honor. I believe it's been filed in the

11 clerk's office. But that is a copy of the deed, the

12 referee's report of sale, the terms of sale, surplus

13 money form, everything related to the sale.

14 MR. BRADY: Well, there are a number of issues

10:09:59 15 that he raises that, you know, are -- I attest them. I

16 object to them.

17 THE COURT: Well --

18 MR. BRADY: Well, what, my objections don't

19 matter?

10:10:12 20 THE COURT: Well, your objections may or may

21 not matter, but they don't -- they have to be done in

22 writing, on notice, within the parameters of the CPLR or

23 the Real Property Acts and Proceedings.

24 MR. BRADY: That's what I want to do.

10:10:27 25 THE COURT: You coming into court and orally

 10

1 making some sort of demand or request isn't satisfactory.

2 MR. MULLEN: And I would note, your Honor, he

3 did submit an Order to Show Cause and had the opportunity

4 at that point to support his accusations or his claims

10:10:40 5 with evidence. None has been done. He has not put in a

6 specific objection to any of the figures that were

7 provided in the referee's report of sale --

8 MR. BRADY: I haven't seen them.

9 MR. MULLEN: -- or the judgment of foreclosure

10:10:50 10 and sale, which was, again, granted six years ago.

11 And, again, I would note for the Court that

12 regardless, we cannot pursue any deficiency judgment

13 against Mr. Brady because that time has lapsed.

14 MR. BRADY: Well, in the original complaint it

10:11:04 15 says that we won't pursue a deficiency judgment unless we

16 can't produce the note or if we can't produce the note,

17 and they've never produced the note.

18 MR. MULLEN: Your Honor, I would note, again,

19 the Court has --

10:11:22 20 THE COURT: Well, that's all --

21 MR. MULLEN: -- ruled on the issue of standing.

22 I don't know how many times in this court he's brought

23 that up. In every papers he's put that to the Court, to

24 the appellate court. The judgment of foreclosure and

10:11:32 25 sale --
 11

1 THE COURT: Has that been argued in the

2 appellate division?

3 MR. MULLEN: Honestly, I don't know, your

4 Honor. There's been multiple appeals that have been

10:11:40 5 dismissed or rejected, so I --

6 MR. BRADY: The appellate court has never seen

7 this case.

8 MR. MULLEN: He's made numerous appeals.

9 However, I don't think it's gone through argument and

10:11:49 10 briefing at this point, your Honor. I know there's

11 been --

12 THE COURT: You filed an appeal on this, didn't

13 you, Mr. Brady?

14 MR. BRADY: Yeah, one.

10:11:58 15 THE COURT: What's the status of that?

16 MR. BRADY: I can't get a stipulated record, if

17 you recall. And I'd really like to know why I can't get

18 that record. All the papers that he's referring to I

19 have not seen. They were not sent to me.

10:12:39 20 I don't want to distract you, but there's

21 something else I'd like to tell you. Right during the

22 middle of this timeframe, from October to now, the rules

23 were changed. The mortgage crisis, do you remember? All

24 of those rules were changed. There must be a hearing.

10:13:06 25 The referee must hold a hearing.

 12

1 MR. MULLEN: Your Honor --

2 MR. BRADY: And there must be a settlement

3 conference, and I had neither.

4 MR. MULLEN: Your Honor, there was a settlement

10:13:18 5 conference, as we've gone through before in the past.

6 That was before my office took over, when Steven J.

7 Baum's office had it. And it's noted on E-course that

8 there was a settlement conference and there was a failure

9 to appear. The Court was apprised of that during the

10:13:32 10 application for motion for summary judgment.

11 In terms of the referee's hearing, I did submit

12 papers as to why a referee's hearing is not required at

13 this point in time as the Court has the final judgment of

14 that and the defendant has not challenged anything in the

10:13:44 15 referee's report, which, again, was verified by the Court

16 in October of 2010. Six years later, now he's bringing

17 it up without any specific allegations as to what was

18 incorrect in that referee's report.

19 So at this point I will let my papers stand on

10:14:00 20 that. But, again, I believe that we've covered every

21 issue in this case multiple times, and at this point I'm

22 still unclear what exactly this Order to Show Cause would

23 actually accomplish at this point.

24 MR. BRADY: Yeah, I think I just heard him say

10:14:14 25 there was a failure to appear?

 13

1 MR. MULLEN: Your Honor, that's my -- I would

2 have to check on that. But if Mr. Brady's claiming he

3 didn't have a settlement conference, I don't know how he

4 would've appeared, so...

10:14:27 5 My recollection, and I would have to -- I'm

6 sure the Court has papers from -- in the motion for

7 summary judgment that a settlement conference was held on

8 this matter, the action was released and allowed to

9 proceed with foreclosure, which is why we've gotten

10:14:41 10 through the foreclosure sale.

11 MR. BRADY: No, that's not what happened.

12 Now, I showed up for two settlement

13 conferences, and John Bellucci, or Belluccio, never spoke

14 to me.

10:14:53 15 THE COURT: Who was -- how was he involved in

16 it?

17 MR. BRADY: I don't know.

18 THE COURT: Was he your lawyer?

19 MR. BRADY: That's one of my points.

10:14:59 20 THE COURT: Did you have a lawyer?

21 MR. BRADY: No. I think that he worked on a

22 per diem basis for Steven Baum.

23 MR. MULLEN: Yeah, he did, your Honor.

24 And the defendant just claimed that there was

10:15:10 25 no settlement conferences and now just claims that he

 14

1 appeared at two, so clearly --

2 MR. BRADY: Well, if he's on a per diem basis,

3 he didn't have the authority --

4 THE COURT: Who was the settlement conference

10:15:20 5 before?

6 MR. BRADY: Who was it for?

7 THE COURT: Who was the referee, or who handled

8 it?

9 MR. BRADY: I don't know.

10:15:27 10 THE COURT: Was it Paul Riordan back then?

11 MR. BRADY: Steven Kelly was supposed to have

12 been the referee.

13 THE COURT: Pardon?

14 MR. BRADY: Steven Kelly was supposed to have

10:15:39 15 been the referee. I've never met him.

16 THE COURT: Well, what are you looking for

17 today, Mr. Brady?

18 MR. BRADY: I want to account for everything

19 that has happened.

10:15:53 20 THE COURT: You just want a breakdown of the

21 monies; am I right?

22 MR. BRADY: I want to overturn the sale.

23 THE COURT: That's a different issue. Mr. --

24 counsel just gave you the breakdown of the judgment that

10:16:08 25 was entered.

 15

1 MR. BRADY: Is that accurate just because he

2 wrote it on paper?

3 THE COURT: Well, he's represented that was the

4 numbers.

10:16:17 5 MR. MULLEN: Right.

6 And, your Honor, I can provide Mr. Brady a copy

7 of what I've provided the Court today, and that's the

8 executed documents from the referee regarding the sale,

9 the statement of sale, the deed.

10:16:26 10 MR. BRADY: Why hasn't he done that already?

11 MR. MULLEN: Well, your Honor, we're not

12 required to, and they're also filed with the Court.

13 MR. BRADY: They're not in the court file.

14 MR. MULLEN: Okay.

10:16:35 15 THE COURT: What you've submitted here doesn't

16 give the breakdown as you just orally --

17 MR. MULLEN: I can provide that as well, your

18 Honor. That is part of the package of the referee. It

19 does -- I know the statement of sale will show that.

10:16:51 20 THE COURT: Okay, submit -- send it to --

21 Mr. Brady, what's your address so they can send

22 it to you?

23 MR. BRADY: It's 2034 West Henrietta Road.

24 THE COURT: What is it, 20?

10:17:02 25 MR. BRADY: 2034 West Henrietta Road. It's

 16

1 14623.

2 THE COURT: All right, very well, you'll send

3 all the details to Mr. Brady.

4 And, Mr. Brady, you can do whatever you want

10:17:27 5 after that.

6 MR. BRADY: Well, I'm going to file my

7 arguments in writing.

8 THE COURT: Very well.

9 MR. MULLEN: All right, thank you, your Honor.

10:17:34 10 THE COURT: I'll look forward to it.

11

12 (Certified to be a true and accurate transcript.)

13

14

15 Ellen K. DeVito, CSR, RPR

16 Senior Court Reporter

17

18

19

20

21

22

23

24

25
 1

1 STATE OF NEW YORK : COUNTY OF MONROE

2 SUPREME COURT : CIVIL TERM

---------------------------------------x
3 :
WELLS FARGO BANK NA, : Index 2009/4419
4 :
Plaintiff, :
5 :
-versus- :
6 :
KEVIN PATRICK BRADY, : Special Term
7 Defendant. : Motion
:
8 ---------------------------------------x

9 Hall of Justice
Civic Center Plaza
10 Rochester, New York 14614
February 23, 2017
11

12 P r e s i d i n g :

13 THE HONORABLE JOHN J. ARK,

14 Justice of the Supreme Court

15
A p p e a r a n c e s:
16

17 RICHARD S. MULLEN, ESQ.

Attorney for the Plaintiff
18 2 State Street
Rochester, New York 14614
19
KEVIN PATRICK BRADY, Defendant
20 appearing in person, pro se

21

22

23 R e p o r t e d B y :

24 MARY JANE YAEGER, CSR

Official Court Reporter
25
 2

1 (The Court convened at 9:50 a.m.; defendant present.)

2 THE COURT: Yes, sir, Mr. Brady?

3 MR. BRADY: Good morning. Judge, I'm glad you

4 could put me on the docket. First and foremost or above

5 all, I have to have an Order to get back into my house

6 and I'll tell you why. As I have said in my papers, the

7 transfer of title, the Referee's report is all

8 unauthorized, according to law.

9 Now, I know this -- I have been studying this

10 case for years -- technically the property is still mine.

11 I've lived in it for 15 years. I've invested over

12 $150,000 into it and the transfer of title is not valid.

13 So please allow me that courtesy to return to my home,

14 under those conditions.

15 THE COURT: How much money do you owe on the

16 mortgage?

17 MR. BRADY: According to the Referee's report

18 $61,000.

19 THE COURT: All right.

20 MR. BRADY: But, you see, the Referee's report

21 is not valid because the arithmetic is all wrong. I

22 don't know where he got the numbers. I assume from Wells

23 Fargo, but he didn't consult me. I never had a

24 conference with the Referee. I've never had a settlement

25 conference and I know that according to law that there's

 3

1 no authorization for service advances unless they have

2 the note. The note is what drives this whole case and

3 it's conclusive that they do not have it, that's why they

4 didn't pursue a deficiency judgment.

5 Now, according to David Dunn and

6 Allison Schoenthald -- do you recognize these names?

7 MR. MULLEN: I do not.

8 MR. BRADY: Oh, they work for one of your

9 first appellate attorney firms. According to them, all a

10 party needs to facilitate a foreclosure is the note and I

11 would like to --

12 MR. MULLEN: You can give that --

13 MR. BRADY: Would you please pass this up for

14 me? The next thing is if you have had a chance to

15 review the result of my subpoena getting the PSA

16 agreement, which by the way, I have sent in this morning

17 because I don't have a printer. The PSA at least

18 confirms that there is a cutoff date for assets to be

19 deposited into the GSMPS Trust and that cutoff date was

20 four years before this action commenced. The

21 significance of that is if this mortgage transfer

22 assignment of -- dated 2006 was actually in the trust at

23 that time, then there was no standing to start this

24 action and if it was not in the trust at that time it's

25 not compliant with the rules of the trustee.

 4

1 THE COURT: When is the last time you made a

2 mortgage payment?

3 MR. BRADY: I don't know, Judge, but you know

4 we've been through this before.

5 THE COURT: Right.

6 MR. BRADY: I think what you're saying is that

7 the mortgage is what drives this case and legally it's

8 not.

9 THE COURT: When is the last time you made a

10 mortgage payment?

11 MR. BRADY: I don't remember, Judge.

12 THE COURT: Been too long. What was the

13 monthly mortgage payment when you were making them?

14 MR. BRADY: This is -- there's no -- no

15 disrespect, this is exactly what we talked about on

16 November 23rd 2015. Okay? And nothing resulted from

17 that.

18 THE COURT: What was your answer?

19 MR. BRADY: I -- if I remember correctly it

20 was about $800 a month.

21 THE COURT: Was that principal, interest, taxes

22 and insurance?

23 MR. BRADY: Yes.

24 THE COURT: Okay. And what was the principal

25 balance on that mortgage?

 5

1 MR. BRADY: What it is now?

2 THE COURT: No, how much did you borrow

3 originally?

4 MR. BRADY: $88,000.

5 THE COURT: Okay. And what was the term of the

6 mortgage?

7 MR. BRADY: Um-mm, I think 2025, which would

8 have been 30 years -- 30 years.

9 THE COURT: So you took out -- you took out the

10 mortgage in 1995?

11 MR. BRADY: '94.

12 THE COURT: All right. '94, and it was

13 $88,000; what was the interest on the mortgage?

14 MR. BRADY: You see, that's where the

15 Referee's report is wrong, it is an adjustable interest

16 rate.

17 THE COURT: Okay.

18 MR. BRADY: And he's got it all at 5% when, in

19 fact, I sent this in already, it should have been around

20 2% for many years.

21 THE COURT: Okay. Now, so be $800 a month,

22 times 360 months. When do you -- when was the last

23 mortgage payment made, do you know?

24 MR. MULLEN: Your Honor, if I may, I believe

25 it was October 2008. May be off by a month, but I know

 6

1 that's in our --

2 THE COURT: Okay.

3 MR. MULLEN: -- Judgment -- excuse me -- and

4 all the papers we submitted previously, but I believe it

5 was October of 2008.

6 THE COURT: Okay. Does that seem correct,

7 Mr. Brady?

8 MR. BRADY: On the surface, yes, except that

9 if I had had a mortgage settlement conference I could

10 have pointed out that all real estate values in the

11 country were being lowered because of the crisis and I

12 would have been able to negotiate a fair settlement at

13 that time, ostensibly, anyway. Now we've come all this

14 way and I keep getting spurius answers, pleadings from

15 Counselor here, and I know I'm getting sacked in this

16 case.

17 THE COURT: Well, in the statement from the

18 Referee, Mr. Brady, the amount due on the bond and

19 mortgage was $65,067.13.

20 MR. BRADY: Well, I think that includes

21 attorney's fees for the first --

22 THE COURT: No, I'll get to that in a minute.

23 If your principal balance was $88,000 and you had made

24 almost 14 years of mortgage payments, that would seem to

25 be well within the reduction mortgage principal, do you

 7

1 understand?

2 MR. BRADY: I'm not sure I do understand that.

3 THE COURT: Do you know what an amortization

4 schedule is?

5 MR. BRADY: Sure.

6 THE COURT: Okay. You can look on an

7 amortization schedule and if you take what the interest

8 rate is, the principal balance and the term of the

9 mortgage you could find out what the principal balance is

10 at any given point in time in the reduction -- or excuse

11 me -- the payment history of a mortgage; do you

12 understand?

13 MR. BRADY: Okay. Yes.

14 THE COURT: So had you been making the monthly

15 mortgage payments through 2008, the Referee determined

16 that the principal balance was $65,067.13, which would

17 not be unreasonable in light of the fact it was a 30 year

18 mortgage. Okay?

19 MR. BRADY: Well, except that --

20 THE COURT: The next item on the statement of

21 sale was interest from February 3rd 2010 to May 23rd 2016

22 and they have an interest charge of $8,678.54. Then the

23 Referee has plaintiff's cost and allowances $1,465.42,

24 attorney fees $3,050 secured advances -- do you know what

25 the secured advance is?

 8

1 MR. BRADY: Yes, I do and that's what I'm

2 arguing.

3 THE COURT: Okay. Securing advances and trust

4 are the real estate taxes --

5 MR. MULLEN: Taxes and insurance, your Honor.

6 THE COURT: -- insurance that had to be

7 advanced because you weren't making the mortgage

8 payments.

9 MR. MULLEN: If I may, your Honor, those are

10 authorized under the terms of the mortgage that the bank

11 is able to advance those to protect their interest or

12 tell us they would lose the property to tax sale and have

13 nothing in the event of a foreclosure such as this they

14 would not -- have no asset given that this is a -- a, you

15 know, mortgage is a collateral for the loan.

16 THE COURT: Right. Now, Mr. Brady --

17 MR. BRADY: Judge, none of that is confirmed

18 without the notes.

19 THE COURT: Well, Mr. Brady, let me ask you

20 this question; what were the real property taxes on your

21 property?

22 MR. BRADY: Bounced around, roughly, $4,400 a

23 year.

24 THE COURT: That's for town, county, school,

25 fire district?
 9

1 MR. BRADY: Yes.

2 THE COURT: Okay. $4,400 a year, and what

3 would the insurance have been?

4 MR. BRADY: I don't know.

5 THE COURT: Okay.

6 MR. BRADY: Twelve bucks a month, maybe.

7 No -- well, that's -- I don't recall.

8 THE COURT: $12 a month for home owner's

9 insurance?

10 MR. BRADY: Well, I'm just guessing.

11 THE COURT: Oh, okay.

12 MR. BRADY: Like everything else in this case,

13 it's all guessing.

14 THE COURT: Well, no, it's not all guessing.

15 It's guessing on your part because I assume that the

16 Referee, who is obligated by law to be very accurate,

17 relied on documents provided by the bank; is that

18 correct, Mr. Mullen?

19 MR. MULLEN: That's correct, your Honor.

20 THE COURT: Okay.

21 MR. BRADY: Well, documents provided by the

22 service-er of the loan, not by the bank.

23 THE COURT: Now, assuming that the real

24 property taxes are $4,400 --

25 MR. BRADY: Judge, do we have to assume

 10

1 anymore?

2 THE COURT: This is the figure you gave me, I'm

3 just -- what I'm pointing out to you is that these

4 numbers that have been provided, how they appear to be

5 reasonable under the circumstances. Let me just

6 continue. If the real property taxes are $4,400, which

7 you claim, and let's say there's $1,000 for all the

8 insurances. Okay? It's $5,400 a year and you didn't

9 make payments for 8 years, which means the money had to

10 be advanced by the bank to secure the property and,

11 frankly, securing your interest that means --

12 MR. BRADY: Not according to New York law.

13 THE COURT: Well, that means just on that

14 alone, that's $43,000 they had to advance on your -- to

15 protect the bank. The amount that they have in the

16 statement of sale that the Referee computed is

17 $42,142.66. Based on the number you just gave me it's

18 perfectly reasonable. Okay?

19 MR. BRADY: Except we're overlooking something

20 very important, without the notes those numbers are

21 meaningless.

22 THE COURT: No, they're not meaningless. No,

23 this --

24 MR. BRADY: Yes, they are.

25 THE COURT: -- all the numbers have been

 11

1 provided to the Referee; is that correct?

2 MR. MULLEN: Correct, your Honor.

3 THE COURT: Okay. Now, Mr. Brady, do you want

4 your house back?

5 MR. BRADY: Yes.

6 THE COURT: Has the house been sold?

7 MR. MULLEN: The house has been -- there's a

8 foreclosure auction, there's a Referee's deed and it went

9 back to a bank, so I don't know if it's been sold again.

10 If I may, I can get into the fact that we've

11 gotten calls from the Sheriff's Department that Mr. Brady

12 is trying to enter the property, even though he no longer

13 owns it. There's a recorded deed, he's been lawfully

14 evicted.

15 THE COURT: Do you know if the property is

16 currently listed for sale?

17 MR. MULLEN: I don't think yet, your Honor,

18 no. It usually takes time to go in and do repairs that

19 may be needed, but, again, we've gotten calls from the

20 Sheriff's Department, also have e-mails from Mr. Brady

21 confirming that he's going back into the property when he

22 does not have title to the property and has been lawfully

23 evicted.

24 THE COURT: Well --

25 MR. BRADY: Again, according to law -- and I

 12

1 have submitted this to you -- a Referee's reported the

2 sale, the title transfer is not valid.

3 THE COURT: Okay. Mr. Brady, here's what we're

4 going to do, if you want the house back, you can go buy

5 the house. All right?

6 MR. BRADY: I can go buy the house?

7 THE COURT: Yes. As soon as it's listed for

8 sale or Mr. Mullen will give you the name of somebody at

9 the bank who will negotiate the sale of the property to

10 you. All right? If you want your house you can go buy

11 it.

12 MR. BRADY: Okay. You're going to ignore all

13 of the legal rights that I have?

14 THE COURT: No, no, we've never ignored any of

15 your legal rights. We've looked at this case, we've

16 studied the case and we determined that it was an

17 appropriate foreclosure of the property. Okay?

18 MR. BRADY: May I ask?

19 THE COURT: You've had ample opportunity to

20 challenge it. I've asked you on at least four or five

21 occasions how much money do you have to go and sell this

22 to the bank and your answer has always been "I don't have

23 any money;" that's always been your answer.

24 MR. BRADY: Well, you do recall that --

25 THE COURT: Now, Mr. Brady, let me explain

 13

1 something to you, it's really simple, when you don't --

2 haven't made mortgage payments in 8 years --

3 MR. BRADY: Do you recall why I --

4 THE COURT: -- when you don't make mortgage

5 payments your property gets foreclosed on. Okay? You

6 didn't make any payments for 8 years.

7 MR. BRADY: Do you know why?

8 THE COURT: Well, it doesn't matter. It

9 doesn't matter why.

10 MR. BRADY: Oh, it doesn't?

11 THE COURT: I do know why, what you claim.

12 Okay? But it doesn't matter in a foreclosure proceeding.

13 Okay? And you've explained it to me and you've been

14 given, over the last four years, ample opportunity to go

15 in and buy this house out and the bank would have been

16 happy to do it. Okay? And they might have really

17 afforded you a considerable discount just to get rid of

18 this property. They don't want to hold this property,

19 costs them money to hold this property, but you never did

20 that. You always came in here and gave excuses of why

21 you didn't make payments. Okay? And we've been more

22 than patient with you and you never took advantage of our

23 patience -- or you did -- excuse me -- you took advantage

24 of our patience, but you never took advantage of the

25 opportunity we gave you. Okay?

 14

1 MR. BRADY: I don't recall these opportunities

2 being made to me before.

3 THE COURT: Well, if we went back into the

4 record you'll see, I asked you how many times how much

5 money, can you get the money, and the bank could -- you

6 can sit down with the bank and negotiate something. The

7 bank is always willing to do it; that's the policy.

8 Okay?

9 Now, let me explain what we're going to do.

10 I'm denying your motions. For the record, I'm denying

11 every motion that you brought that I haven't decided.

12 Every motion that's undecided is hereby denied; do you

13 understand that? Okay. And Mr. Mullen is going to

14 prepare an Order and I'm going to sign the Order and it's

15 going to say that all motions that haven't been decided

16 are hereby decided and any relief you've requested is

17 hereby denied. Okay?

18 MR. BRADY: Are you also denying my right to

19 damages from being wrongfully evicted from --

20 THE COURT: Everything denied, Mr. Brady.

21 Okay? And now we're also going to put in the Order that

22 you're not to serve anymore papers on my Chambers; do you

23 understand that? That you have no more phone calls with

24 my Chambers. You're to serve no e-mails on my Chambers;

25 do you understand that?

 15

1 MR. BRADY: Yes.

2 THE COURT: And if you do, as of now, it will

3 be Contempt of Court; do you understand that?

4 MR. BRADY: Yes.

5 THE COURT: And the only way you can serve

6 papers on me is if you get permission of either the

7 Administrative Judge of the 7th Judicial District or the

8 Presiding Judge of the Fourth Department, this Appellate

9 Division; do you understand that?

10 MR. BRADY: Yes.

11 THE COURT: And any papers that you serve on us

12 without an indication from either the Administrative

13 Judge of the 7th Judicial District or the Fourth

14 Department Presiding Justice will be -- will summarily be

15 returned to you and we may consider at that point in time

16 that you're in violation of this Court Order; do you

17 understand?

18 MR. BRADY: Yes. Do I have any right to

19 continue speaking?

20 THE COURT: Sure.

21 MR. BRADY: May I ask you, what was or what is

22 the basis for determining that the standing was decided

23 against defendant right from the outset, based on what?

24 Made the -- your determination that standing was decided

25 -- was necessarily decided against the defendant right at

 16

1 the outset. Because from what I can see and what is now

2 confirmed by the PSA, nobody can make any determination;

3 it's just too convoluted.

4 THE COURT: Thank you very much, Mr. Brady. As

5 soon as we get the Order it will be served upon you. I

6 assume that you're still living at a house in Henrietta?

7 MR. MULLEN: No, eviction has taken place;

8 foreclosure, he's been evicted.

9 THE COURT: No, no.

10 MR. MULLEN: Sorry.

11 THE COURT: I thought he was living in

12 2034 West Henrietta Road; are you still there, Mr. Brady?

13 MR. BRADY: No, no, I'm not.

14 THE COURT: What's your address now?

15 MR. BRADY: I don't have an address now.

16 THE COURT: You don't have an address?

17 MR. BRADY: No, I'm on the street.

18 THE COURT: You're living on the street?

19 What's the address on the street you're living on?

20 MR. BRADY: There isn't any.

21 THE COURT: Pardon?

22 MR. BRADY: There isn't any. I just want to

23 be clear before we leave that my motion to reverse the

24 Referee's transfer of title is denied?

25 THE COURT: That's right. And you're not going

 17

1 to tell us your address?

2 MR. BRADY: I don't have an address.

3 THE COURT: Okay. Well, Mr. Brady, when you

4 mail things to us what are you going to put as a return

5 address?

6 MR. BRADY: Up until today I had an address.

7 THE COURT: So as of today you don't? Has

8 something happened between 9:30 and 10:15 today that you

9 don't have an address?

10 MR. BRADY: That's right, yes.

11 THE COURT: All right. What was your address

12 at 9:15 this morning?

13 MR. BRADY: 2034 West Henrietta.

14 THE COURT: Okay. So that's, as far as we're

15 concerned, that's your address?

16 MR. BRADY: You see, I was very confident that

17 the law would prevail, the law as I asserted it in my

18 papers. You're telling me that you're not even -- you

19 don't even know what the issues are?

20 THE COURT: Very well. Thank you.

21 MR. MULLEN: Your Honor, for clarification, I

22 will present an Order to the Court, on notice to

23 Mr. Brady, with all the terms that you just noted.

24 THE COURT: Right.

25 MR. BRADY: If I have any objections I'm not

 18

1 allowed to --

2 THE COURT: Those are the last documents we're

3 taking from you. Your objections to the Order, once that

4 Order is signed, Mr. Brady, there's nothing to be sent to

5 me or my secretary or my Chambers without the permission

6 of either the Administrative Judge of the Seventh

7 Judicial District or the Presiding Judge of the Fourth

8 Department.

9 MR. MULLEN: Your Honor, I would note that

10 this instant motion and the various other ones since June

11 2018 -- June 18th 2014 your Honor, issued a decision

12 where, I quote, the Court hereby directs that the

13 defendant, Kevin Patrick Brady shall bring no further

14 motions in this matter without written permission of the

15 Court. Pursuant to e-courts he's filed, I believe, five

16 motions since that time. So, obviously, your Honor's

17 denied them, but, again, I just note my objection on the

18 record, given the fact that is a violation of the Court

19 Order dated June 18th 2014.

20 THE COURT: Very well. Thank you.

21 MR. BRADY: I just want to put on the record

22 that this appearance is typical. I'm trying to raise

23 legal rights, establishing legal rights and it's just

24 going in one ear and out the other.

25 MR. MULLEN: One last thing, your Honor, that

 19

1 would be on submission, I assume, that Order?

2 THE COURT: Right.

3 MR. MULLEN: Thank you.

4 THE COURT: I have another matter with you?

5 MR. MULLEN: Yes.

6 THE COURT: Okay. You come on into my

7 Chambers.

8 MR. MULLEN: Thank you, your Honor.

9 THE COURT: Thank you.

10 (Certified to be a true and accurate transcript.).

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 1 SUPREME COUR.T OF TiiE STATE OF NEW YOR.K
2 COUNTY OF MONROE

3 -x
4 WELLS FARGO BANK NA, x

5 Plaintiff, X

a
U x
1 x

B KEVJN PATRTCK BRADY, X

9 Defendant. X

r0 -----x
11
Hal-I of Justrce
12 Rochester, New York
April 4, 2A1B
13

14
BEFORE: HONORABLE JOHN J. ARK
15

16
a
APPEARANCES: WOODS OVIATT GILI,IAN, LLP
;;
11 Two State Street
Rochester, New York 14614
1B Appearing on behalf of the Pl-arntrff
BY : R.ICHARD S . MULLEN, ESQ .
o
o
z!
19

o
20 KEVIN PATR.ICK BRADY

I
Appearlnqr Pro Se
o 21

22

23

24 REPORTED BY: CYNTHIA SCHOTT GER.MUGA, C. S. R.

Offrcral Court Reporter
25
 WELLS FARGO -VS_ tsRADY

1 Ir'-E COURT: This is the matter of Welf s

2 Fargo Ban< versus Kevrn Patrick Brady- Mr- Brady,
3 do you have a motron?
4 MR. BRADY: I di-dn' t hear you, slr -

tr
-) THE COURT: This is your motron, isn't rt?
5 IG.. 5RADY: Yes -

1 MR- MULLEN: Yes, it is.

B TIIE COURT: Go ahead. What is vour
: rat tman .F ?.
9 qr
v
qlrr!a]L

t0 MR. BRADY: I just came in this morningr to

11 see rf you had any questions - It l-s all_ there -

12 THE COURT: Questions about what?

'1
3 MR.. BRADY: About mv motion-
14 TIIE COURT: WefI, what refief are you
15 requesting-?
16 MR- BRADY: I want the case overturned-
a

Haven't you asked for that

E
11 THE COURT:
,T
B relief rn the past?
o
O
zr 19 MR. BRADY: Well, I submitted new evrdence
I

t9
o
U
2A this trme.
c
o
I 21 THE COURT: What's the new evidence you are
22 clarmingr?
23 MR- BRADY: WeII, the decisron from the

24 Fourth Department supports everything I have said

25 far nina
/ears
r -
 WELLS FARGO _VS- BRADY

1 THE COURT: What decision is that from the

) Fourth Department?
3 MR. BRADY: It's Bank of America
4 Mel-Ion versus Anderson. The court says you can not
5 continue and you can not conmence a foreclosure
6 proceedinq unless you show the note.
7 TIIE COURT: Mr. Mullen?
B MR- MULLEN: Your Honor, ds I stated in my
9 papers, there has been multiple Orders to Show

10 Cause by the Defendant and attempts at appeals, dS

11 weIl. This court actually sigrned an order I

12 bel-ieve last year or in 2016 forbiddingr the
13 Defendant from bringing any further motions in
14 this court on this action. The Defendant did rai_se
15 standingr as an i-ssue or as an affi_rmative defense
E

lo in his answer. A motlon for summary judgment was

iB
i 11 qranted. Judgrment of foreclosure sal_e was

1B granted- Eviction took place after the foreclosure

o
o
zU 19 sale. The Plaintiff in this action did submit an
@
o
U
20 affldavit attesting to possession of the note
u
=
E
o
u 21 prior to commencement of the action. The court
22 found that Plaintiff had standing. The law of the
23 case has been decided. As I mentioned in my

24 papers/ res judicata holds in this case. As it

25 has three other times, your Honor has denied the
 WELLS FARGO _VS_ BRADY 4

1 Defendant's Order to Show Cause on basically the

2 same g.ol:.rd= and the same arquments. My position
3 i-s if the Defendant wishes to overturn a decision
4 where ;udgment has been granted, where notice of
5 entry has been done and the court decided multiple
6 t:-mes in this action on behaff of the Pl-aintiff ,

l an appeal to the Fourth Department wou1d be the

B appropriate action.
9 At this time I woul-d ask the court to issue an
't 0
order aqain denying this Order to Show Cause and
11 ag'aj-n barrinq the Defendant from bringing these

12 motions that are frivol-ous and are repetitj-ve and

13 a waste of judi-cial time as wel-l as Plaintiff 's

14 time.
15 THE COURT: What I'm qoing to do 1s I witl
E

'i
aa
lo deny your request for relief , Mr. Brady, and i_f you
3
3
; 11 wj-sh to have any determination of this court to be
1B made consistent with a determination that has been
o
o
zU 19 made by the Fourth Department, it's their
.s
o
20 prerograt j-ve. It is not this court ' s prerogative.
U

E
o 21 So, what you can do is after Mr. Mullen submits
22 the order/ you can appeal this declsion and that
23 wil-I give the Fourth Department an opportunity to
24 decide whether they want to effect a determination
25 consistent with what you are claiming in the
 WELLS EARGO -VS- BRADY

1 Anderson case-
2 MR. BRADY: Yes.

3 TIIE COURT: So, you will submit an order

4 then, Mr. Mul-l-en?

5 MR. MULLEN: Yes, I can do that, Your

6 Honor.
1 THE COURT: Very weII.
B MR. BRADY: I ask if you personally have

9 ever seen the note in this case? The reason that

10 I ask is because Mr. MuIIen responded to my

11 motlon and says that they have produced the note.

12 Now I 've never seen i-t, so I 'm wonderi-nq when it
13 happened and how you made a decision, you know,
14 for summary judgment wi-thout ever havi.ng seen
t5 the note.
E

16 MR. MULLEN: Your Honor, ds I stated in

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1B provides that the orj-ginal note does not need to
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22 done in this case. I have been practicing

23 regardingr foreclosures now for six years througrhout
24 the state, and every department in this case
25 holds true. The bank is not required to provide
 WELLS FARGO _VS_ BRADY

1 the orig'rnal note of every case, aqain because the

2 origrrnal note is bl-ank endorsed and is payable to
3 who holds that note. If we were to submlt that
4 with our paperwork, we would no lonqer hold the
5 note and no longrer be able to colf ect on it - As

6 noted prevtoLis --]nes, rhrs l-oan was rn deiaul-t

1 begrinningr, I believe, in October of 2008. No

B other actions have been commenced by any other

9 bank to foreclose on thrs mortgraqe with the
10 underlying note. The Plaintiff, our cl_ient, was

11 the only one to do so - Mr. Brady has not alleged

12 anyone else has the note, that anyone else has tried
13 to colfect payment on the note - We have gone over
14 the facts multiple times of the defautt - He has
15 not alleged he made any payments- So, again, I wrfl_
! 16 submit an order, and if the Defendant would like to
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B MR. BRADY: WelI, I ob;ect to that-
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zU 19 R:-ght from the gret-gro I offered to pay them and
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21 THE COURT: On several- occasi-ons I asked
22 why you hadn't pard, and you acknowledged why vou
23 hadn't maCie ber-< rl .\'-o-! c

24 MR. BRADY: Thev refused_

25 THE COURT: You've had drfferent
 WEL-S r'ARGO -VS- =RADY

1 explanat-c:-s for not makrnq payments-

2 )iR. BR.ADY: No, f haven' t . I 've been
3 absolutely cons:-stent every step of the way.
4 Ti{E COURT: Pardon?
5 MR. BRADY: I 'm not hidi_ng anything. I 'm

6 not awoiding anything.

1 THE COURT: WeIl, you acknowledged you
B borrowed the money.
9 MR- BR.ADY: I said when I answered the
10 complaint that I made payments and they refused
1", them. So, what do I do after that? And, in fact,
12 they advrsed me later on not to make any payments
13 or they couldn't accept any more payments.
14 THE COURT: Al-1 rlght . Very weli - you
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5 wrll submit the order then?
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16 MR. MULLEN: Yes, Your Honor, I wiif do

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1B TIIE COURT: Where are you living now,

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2A MR.. BRADY: i object.
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22 MR. MULLEN: He did provrde it in his
23 papers and there is a p - O. Box where he is
24 receiv:-ngr marl - So, we drd send our opposrtlon to
25 that address and that was the address on his
 WELLS FAR.GO _VS- 3RADY 8

1 Order to Siow Cause . So, we wj-II provrde a copy

2 obvrously tc Mr. Brady, as weII-
3 THE COURT: Mr. Brady, is that P.O.
4 adCress str-ll grood?

5 MF. BRADY: IUr.

6 ri{. CO-F.': Vr>ry we-Ll - The papei:s can be

1 served there then-
B MR. MULLEN: Thank you.

9 ***)kx CERT IEDTOBEAT ND;ACCURATE TRANSCRIPT )k)k***

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12 CYNTHIA SCHOTT G , OFFICIAL SENIOR COURT R.EPORTER

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