Cats like him are lazy, crooked, stupid or all of the above IMO. Judge Schack over in New York can spot the issues ab initio (read below the fold).
Judge Schack is cool, Judge Diane Nicolosi (in the ethics complaint, supra) is not. She too, is either lazy, corrupt, or stupid IMO.
Judge Schack Speaks Again
Curiously enough, while I was in the process of writing this article, and less than a week after his decision in Robertson, Judge Schack decided another case involving frivolous pleading by a plaintiff and began his inquiry into possible sanctions against plaintiff’s attorneys. Wells Fargo Bank v. Reyes, #5516/08, New York Law Journal, July 15, 2008. This time, the defendant was the right defendant, but the plaintiff was the wrong plaintiff.
Wells Fargo brought an action to foreclose on a mortgage affecting property in Brooklyn owned by defendant Reyes, who had allegedly defaulted in his payments. Unable to find and serve Reyes, Wells Fargo moved ex parte for service of a supplemental summons by publication.
Judge Schack conducted his own inquiry into the records of the automated City register Computer System (ACRIS) maintained by the New York City register and concluded that Wells Fargo did not own the Reyes mortgage and had never owned it. Indeed, the records showed that the mortgage was held by another mortgagee.
Judge Schack proceeded to deny Wells Fargo’s motion for a supplemental summons with prejudice, and, adhering to the same policy he had used in Robertson, supra, he set the issue of possible sanctions against Wells Fargo’s attorneys down for hearing.
Annoyed by what he called the “chutzpah” of Wells Fargo’s attorney in challenging the efficiency of the office of the Kings County Clerk and in insisting on her interpretation of the rules controlling publication of the supplemental summons, Judge Shrack said, quoting the attorney’s own language:
Ms. McLoughlin needs to be cognizant that the making of a motion by an attorney who
represents a client that alleges to be a plaintiff in a foreclosure action, and who in reality is not a plaintiff, imposes “an undue burden upon the Court’s calendar and [the waste of the court’s time] undermines judicial economy.”
The Court is gravely concerned that it expended scarce resources on a motion by Wells Fargo, which is not the owner and has never been the owner of the Reyes’ mort‐gage. Wells Fargo has no standing in the instant action. Ms. McLaughlin [sic] and her firm…will have to explain to the Court why this Court should not sanction them for making a frivolous motion pursuant to 22 NYCRR §130.1‐1.
Judge Schack reviewed a line of cases holding that a plaintiff must have standing to sue before he may properly initiate a law suit against anyone. In actions to foreclose, for example, the plaintiff must show three distinct elements: 1) the existence of the mortgage and of a note establishing the debt; 2) that it is the owner of the mortgage; and 3) that the defendant has defaulted in his payments. Campaign v. Barba, 23 aD3d 327 (2d Dept 2005).