Feynman 4 Justice

Points that make or break a Lyceum Future...
Before you can say if lower court judge was correct, it must be found that the lower court followed the rules.
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FEYNMAN SEZ

With no technical terms, he made the technical accessible.

His video explaining the 1986 Challenger disaster before a committee wherein he places a clamped to compression o-ring in ice water and shows that the material, which needed to be resilient, was not resilient at 32 degrees was brilliant.

No science, just logic.

If you ever see the Feynman path integral lecture/video, you will be exposed to math that is beyond the reach of the average person but is explained in such a away that the average person can understand the issue.

We make an efforts at the same, making the legal accessible.

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SETTING THE TABLE

What follows in the next tabs is simple words at the beginning of each tab. We will label that section of each tab, the FEYNMAN.

If they make sense, move on to the next tab. If they don't make sense, read further on in the tab where the issue is addressed, the SHALLOW.

If you are ready for a deeper dive, try further, the DEEP.

In addition, upon the request of a friend who believes our explanation of what is going on has been lacking, we will limit the issues to only those that need be addressed to reach what justice demands, Notice and Opportunity to be Heard despite our desire to tell the world of all that has happened (would take a book).

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ORAL ARGUMENT

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SETTING THE TABLE

Body blow of 2012

When it seemed clear from the law, case law and the facts, that the foreclosure against the Brooklyn Lyceum was abandoned, a motion was made to dismiss a foreclosure in its entirety under a law that specifically detailed how, and when, the court must dismiss a case as abandoned. That law is CPLR 3215(c).

Put quite simply, the defendant has a certain amount of time to answer. That time was dictated by when and how the Summons and Complaint was served. Once that time to answer has expired (the Defendant has "defaulted"), the Plaintiff has one year to take some action, any action, towards a judgment of default (a decision that the defendant's time to answer had expired).

Such an action takes the form of a "Motion for default judgment and order of reference". It must be made with 365 days of Default.

Such a motion need not be presented to the defaulting defendant --UNLESS-- they have participated in some substantive form, that they have "appeared". If a defendant has participated/appeared, the motion must be presented to the defendant in advance, with some notice, as motions without notice never invoke the power of the court. And, if any party has appeared via an attorney, ALL papers must be served on that attorney. The failure to serve papers once a party has appeared or the failure to serve the papers on a party's known attorney, again, never invoke the power of the court.

Any decisions based on Notices/Motions that never invoke the power of the court are, void, not just voidable. "Void, not just voidable" has a very special legal meaning. That means, despite their presence on a piece of paper that may be filed with the court, such violations of statute, and jurisdiction, never have any validity and no entity is ever allowed to benefit from such a decision or act of the court.

In addition, the motion must be supported by (include) a sworn under the penalty of perjury affidavit that the time to answer has not been extended, that the time to answer has expired, that the defendant had not appeared iand that the defendant had not interposed an answer.

All four of those required staements are in the boiler plate "Default and Order of Reference" decision available on the Kings Supreme website.

The court was presented with such a motion supported by such an affidavit and the court issued a judgment of default based on that affidavit.

Therein lies the rub. What if, despite the sworn statement under penalty of perjury by the Plaintiff Attorney (who has since been suspended from the practice of law), a defendant had appeared by counsel, a defendant had been granted extensions of time to answer, a defendant had interposed an answer and the time to answer had not expired when the motion for default was submitted?

After getting a Judgment of Default, the Plaintiff went for the jugular, it sought, again by motion and notice and affidavit, a "judgment of foreclosure and sale".

If the court grants the Judgment of Foreclosure and Sale, the collateral on the loan, the Brooklyn Lyceum, can be sold to the highest bidder at auction in a fashion described by the judgment of foreclosure and sale itself.

Again, the affidavit in support of the motion has to match the wording and meaning of the boilerplate "Judgment of Foreclosure and Sale" from the Kings Supreme Court webcite. Those words are:
"""
from which it appears that each of the defendants herein have been duly served with the Summons and Complaint in this action, or have voluntarily appeared personally or by their respective attorneys, and stating that more than the legally required number of days had elapsed since said defendants were so served and/or appeared; and that none of the defendants had served any answer to said Complaint, nor had their time to do so been extended
"""

The rub, again. "duly served or appeared" and "more than the legally required number of days had elapsed" (since service/apearance) and "none of the defendants had served any answer" and "nor had their time to do so been extended".

From documents submitted BY THE PLAINTIFF 18 months after the motion for BY THE PLAINTIFF "Judgement of Foreclosure and Sale" was submitted, it is clear that me had been extended", and "answers had been served".

From a reading of the first few items on the docket it is clear that the Brooklyn Lyceum had never been "duly served" as proof of servce of the complaint, that which STARTS the time to answer, has never been filed with the court. And, clearly, if the item starting time to answer was not filed, any affidavit swearing time to answer had expired is flat out perjury. If that perjury is by an attorney, a court officer, it is Fraud Upon the Court by a Court Officer. That becomes important later, when the legal maxim "fraud vitiates all it touches" is addressed.

Paradoxically, the proof of service is submitted in the Motion for Judgment of Foreclosure and Sale. Thus, the Motion that swears time to answer has expired, in and of itself, STARTS the time to answer.

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JURISDICTION BEFORE MERITS

It would seem axiomatic, something assumed to be true without havingto raise it, but courts can only rule when the rules have been followed.

FOr example, no one expects thatif a statute requires 8 days notice that less than 8 days notice is adequate.

It is not adequate, and, unless the side being impacted by the less than required notice is willing to waive the requirement of that notice, the power of the court has not been invoked and nothing that any court does on lack of notice ever has any value. It is VOID, NOT JUST VOIDABLE.

More importantly, no entity can ever be sure of retaining any benefit derived from such violation of statute. There is even a special term for it, "Lack of Jurisdiction".

Another example is when an attorney, all of who hold a halowed title of "officer of the court" may never lie to the court. Such an act is termed a "Fraud Upon the Curt by a Court Officer". Whenever a judge grants something premised on such a lie to the court it is, again, VOID, NOT JUST VOIDABLE.

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SHIELD NOT SWORD

The law since the founding of the country has been focused on the prevention of abuses being inflicted by those in a position of power or influence on those not in a position of  power or influence.

To that end the system of laws in place have  generally  sought to make sure that the system errs on the side of those being prosecuted, whether civilly or criminally.

One such result of this philosophy is that those who seek to hold someone accountable are limited to what they present as evidence, on notice to the other side.

But, on the other side, a party that was not on notice can introduce things that the movant did not put on the record in any attempt to impeach the seekers illegally obtained success.

In fact, when the cheating is perjury, as we have here, even a party that was on notice can comeback and attack the illegal offensive maneuver.

In other words, the offrnse is evaluated on the cards it shows when it makes its play.

The defense, however, can unwind the successful play by showing the offense cheated.

And what we have in the Brooklyn Lyceum foreclosure is a whole bunch of cheating by the offense that the referee (judge) did not catch the first time around.

And, as opposed to football, baseball and basketball, the fact that the referees missed the cheating in the first round does not preclude review later and undoing the cheating resetting the offense and defense to the positions they were in before the cheating.

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JURISDICTION=FOREVER

Oftentimes one may thing that too much time passing is too much "water under the bridge" to ever effectively or ethically unwind an action

That is generally true.... except when lack of jurisdiction is the issue.

When jurisdction is lost, the wheels come off the bus.

As court officers, attorneys and judges, are creatures of the law, any violation of the law can never be considered to have taken hold as how can the passage of time be allowed to validate violations of the law by court officers?

This is so important that many cases, decades old, have been unwound. Thus, it is incumbent on ALL parties to a case, even the party that benefitted by acts in excess of jurisdiction(the power to declare the law).  

The best example is a Supreme Court ruling  voiding the sale of what had been Arlington National Cemetery some 18 years after it was taken in violation of due process.

In December 1882, the U.S. Supreme Court, in a 5-4 decision, returned the property to Custis Lee, stating that confiscation of the property lacked due process

The U.S. Supreme Court also explained in the 1950 case Mullane v. Cent. Hanover Bank & Trust Co.:
“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”

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JUSTICE FLOWCHART (JFC): NOTICE

The first question to ask is were the rules of the court followed?

If not, one asks the next question... is this rule a jurisdictional rule?

If it is jurisdictional and the decision is at risk, is it void, or just voidable?

This is a particularly convoluted discussion that can, in the case of the Brooklyn Lyceum, be whittled down to if it is a violation of the Statutory Notice (lack of required advance notice and lack of notice to attorney for Defendants), it is flat out void. And, as flat out void, no party can ever gain any benefit. This is important as when the judgment is just voidable,

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JURISDICTION BONANZA

After having looked at the merits for two years, the Lyceum set a spell in the tiny, tiny town of Fort Lonesome, Florida, halfway between nowhere and really nowhere all the while sandwiched between giant phosphate mines.

There the Lyceum spent the better part of three months becoming one with a good chunk of David Siegel's, "New York Practice - 4th Edition".

That tome helped ground the Lyceum in what one could call the art of law as well as the science of procedure. The merits of this case are the art of law area. It includes things like was there a note and a mortgage, who were the parties of the note and mortgage, what payments were made and when on the note and mortgage and when, if at all did payments not get performed as per the note and mortgage.

The jurisdiction is where rubber meets the road of the science of procedure.

The Lyceum learned that things that go to notice and opportunity to be heard are inviolate and that the lack of either produce decisions that vanish in the mist when challenged as having not properly invoked the power of the court.

The Lyceum figured out that if the lower court said the Lyceum had appeared if a motion was adjourned and not even heard, there must be a reason why the court failed to use stipulations of time to answer between the plaintiff and the defendant as such an appearance.

Why became obvious as the Lyceum dug into the details. If the court chose a flimsy saappearance standard late into the case, why did the court ignore a solid appearance early in the case.

That little oddity, why did the court choose an tortured appearance act instead of a solid one?

After consuming the Siegel tome, it went off like rockets in the brain. There must be a problem with the solid appearance.

Here is the rub...

The now suspended from the practice of law attorney swore that no party had appeared or interposed an answer. But the court was now using such an appearance and such an answer to justify that the Defendant had waived abandonment by participating.

The Siegel tome informed the Lyceum that, as opposed to parties that do not appear, any appearance by a party (stipulations to extend time to answer and answers) requires that all future papers be served on that party. A party who has not even bothered to appear / answer is deemed to have wived right to notice.

It gets dicey here because the court, in granting the Default, accepted the now suspended attorney's affidavit in support that swore that all parties had been served, no party had appeared and no party had answered.

Then, when the defendant challenged the decision premised on thse assertions by the now suspended attorney, the court affirmed the courts earlier decision because of something that the now suspended attorney had sworn not occurred, an apperance and an answer submitted years after the affidavit sweraing they did not exist formed the basis of the court's decision to not dismiss the case.

It make our head hurt. How could the court use evidence on not on the record at the time of the decision to support the decision when challenged when the evidence submitted shws clearly thenow suspended attorney commited perjury to incent the court to find for the Plaintiff omn the issie of default.

The hits just keep on coming...

The appearance that is in question was not just an appearance by the Lyceum, it was an appearance by Lyceum's counsel, an attorney.

An appearance by a party triggers requirement of notice of motions on that party. If there is no notice of a motion, the power of the court to hear the motion is not invoked.

An appearance by counsel triggers requirement of notice of motions on that attorney. If there is no notice of a motion on that attorney, the power of the court to hear the motion is not invoked.

The moment the court found that evidence submitted after the decision (an appearnce by counsel) could be used to support the decision, the court should have seen if that counsel had been served the notice of the motion for default and, for that matter, each and every notice of motion, any paper andd any decsions as the failure to serve such parers are jurisdictional failures.

The Plaintiff NEVER SERVED ANYTHING, EVER ON THE DEFENDANTS.

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SCRATCH INFO

GOOD TO HERE

On ??,??? Plaintiff was noticed of a motion under CPLR 3215c to dismiss the case.

On October 24, 2012, that motion was heard by the court. At that hearing the judge instructed the Plaintiff it had until ??? to present opposition to the motion and Defendant was given time to reply to the Plaintiff response.

Two days later, on October 26, 2012, the Judgment of Default was signed by the same judge and entered. That is, the judge knew full well that a challenge to the jurisdiction was present yet he proceeded prior to dealing with the challenge to the jurisdiction.

Plaintiff put in response to motion to dismiss as abandoned. Those papers included an affidavit from the former counsel for the Plaintiff (one since suspended from the practice of law for not being forthcoming to the disciplinary committee). That affidavit supported the necessary justification ("sufficient cause") to show the court how , in effect, a year since default had not actually passed as there were extensions of time given to the Defendant, undocumented extensions of time. The affidavit did, however, detail how defendant had actually appeared prior to the motion for default, a motion supported by an affidavit from said attorney that no defendant had appeared or interposed an answer.

Defendant put in a response to the Plaintiff's opposition stating that the "sufficient cause" put forth by the now suspended attorney, did not meet the threshold of decades of case law, that contested and unsubstantiated assertions by an attorney have no use.

Court then put in a decision refusing to dismiss thecase as abandoned because :

  • Defendant waited too long citing caselaw : Fuentes v. Virgil
  • Defendant participated too much citing caselaw : ????
  • That Plaintiff has shown "sufficient cause" why the time to answer had been extended by acts of one or both parties.
    • An extension of time to answer signed by defendant only.
    • An extension of time signed by no one which is contested by Defendant.
    • "Multiple oral extensions of time to answer" to which there are no records and which is contested by Defendant.

That decision was appealed on January ??, 2013, was fully briefed on ???? and was, after dome 30 months, argued orally before the Appellate Division, Second Department on September 6, 2018.

Video HERE : ____________