“This is another case which is slowly convincing me that I am the judge in the “Sixth Sense” part of the Civil Court where, like characters in that film who only see dead people, I am relegated to seeing cases with “dead corporations” represented by “dead law firms,” citing Hon. Philip S. Straniere from CENTURION CAPITAL CORP., v. ANNA GUARINO.
Sounds a lot like mortgage foreclosure fraud, doesn’t it? Bankrupt mortgage lending companies resurrecting themselves as the ghost of the bank or pretender lender that exited years earlier – all of a sudden, without legal authority they appear in court trying to fool the homeowners, investors, state recordation offices and courts with fabricated (too late) assignments of mortgage to trusts that closed years earlier and are now rapidly depleting their assets – paid off likely with TARP funds – thank you very much.
Hon. Philip S. Straniere is a current civil court judge for the Staten Island Civil Court in New York City, having been elected to the post in 1997. Straniere is known for his humorous opinions and references to popular culture. [Wikipedia]
Judge Straniere’s recent decision in the Centurion Capital Corp. case reads like a page from the mortgage foreclosure play book… no wonder because it’s a “bank” credit card action (there’s not much difference). The difference is this Judge is honorable and astute.
Turns out that this Centurion Capital Corp. case, and 930 similar cases, were brought by the same Plaintiff who “was never authorized to do business in New York and that it should have been barred from utilizing the court system for the collection of consumer debts” (citing from the Judgment).
It takes a sharp mind for maintaining the details in these cases. Recognizing that the almost same name, sound alike entities are all separate, independent corporations that were purposely created with similar names to trump up defense and prosecuting attorneys, as well as judges.
Many states appoint politically popular general practice attorneys to the bench that may not be qualified to oversee such intrinsically intertwined litigation. Let’s face it – there are a lot of foreclosure judges out there that aren’t the brightest light bulb on the Christmas tree – and many more that own too much Wall Street bank stock (betting their entire investments and pensions that the banks’ stock won’t continue to fail).
Apparently appalled at the number of cases Centurion was filing in such a short time span Judge Staniere stated:
“Case law has held that the failure of a foreign corporation to properly register is a defense which must be raised either by answer or motion or in any case prior to the entry of a judgment or else it is waived as a defense [CPLR §3211(e)] as the issue is one of “lack of capacity to sue” as set forth in CPLR §3211(a)(3) [Household Bank (SB), NA v Mitchell, 12 AD3d 568 (2004)].
Adherence to this rule would make sense if the court were to look at this case on an isolated basis. However, when the totality of Centurion Capital Corporation’s activities in New York City is analyzed, it becomes apparent that the plaintiff adopted as a business plan to use the New York State court system as an arm of its collection activities without making any effort to comply with the filing requirements for a foreign corporation.
Further, such a defense is often one raised by a defendant represented by counsel and is not of the nature to be advocated by unsophisticated, unrepresented defendants. Approximately 93.3% of defendants in consumer debt cases never appear in court, and about 80% of consumer debt claims filed in Civil Court result in default judgments [Report of the Committee on Consumer Affairs, in favor of approving and adopting, Local Law No. 15 (2009)]. Therefore, the odds that a self-represented defendant would even think to raise such a defense become astronomical. Statistics such as this require the court to look beyond pro forma movement of these cases through the system without anyone checking the ability of the plaintiff to even bring the action, let alone when plaintiffs seek to enforce consumer credit judgments. It is imperative that the court insures due process has been rendered and that justice is being done.”
Obviously, the banks take into consideration the number of folks that can afford an attorney. It’s, of course, in their favor. The same applies for foreclosure – not to mention the lack of qualified defense attorneys – this subject takes a seriously higher than normal IQ. If your attorney can’t handicap a thoroughbred horse race – you may not want to hire him for foreclosure defense.
In foreclosure – about 1%-2% of homeowners actually retain an attorney. That’s an incredibly low figure considering there are over 84 million potentially fraudulent mortgages that were written between 2003-2008.
The rest are treated like cattle and herded through the process leaving them in debt – even though the banks may have fabricated their documents, committed serious errors and like Centurion – were not even registered to do business let alone use the state court system.
Judge Staniere apparently understands the word “sua sponte” and that he has some responsibility to consider known facts even if they haven’t been brought to his attention. Sua sponte means an act of authority taken without formal prompting from another party.
Common reasons for an action taken sua sponte are when the judge determines that the court does not have subject-matter jurisdiction or that the case should be moved to another judge because of a conflict of interest or appearance of impropriety, even if all parties disagree. For example, owning stock in the bank that is foreclosing on the defendant…case law and public opinion find the judge should sua sponte recuse himself.
Judge Staniere’s Centurion decision was peppered with digs at the Plaintiff for its obvious disrespect of the court system. Apparently, the Judge is widely known for his colorful quips. The New York Times wrote last year:
“Many judges have been known to sprinkle their decisions with mentions of great minds like Jefferson or Shakespeare. But when New York lawyers see rulings citing authorities like SpongeBob SquarePants, Laurel and Hardy, and Flip Wilson, some of them have come to recognize the unmistakable hand of a prolific, if unorthodox, judge who presides in Staten Island Civil Court: Philip S. Straniere.
In 14 years on the bench, Judge Straniere has built a following for entertaining judicial writing that tends to take some twists and turns. He has been known to opine for no obvious reason that Papa John’s does not sell what New Yorkers call pizza and that Clark Kent “was in fact only a person who understood the difference between right and wrong.”
During the recession, New York civil courts like Judge Straniere’s have been especially busy because credit card companies sue there for past-due bills up to $25,000. A string of decisions that have included eye-rolling exasperation at the credit card companies has won him new followers.
Consumer lawyers passed around a ruling by him that described the ordeal of credit card customers who run afoul of company rules created in distant states. Credit card country, he wrote, is “like the Land of Oz, run by a Wizard who no one has ever seen.”
Another favorite was one that said Citibank’s logic in justifying astronomical interest rates would have impressed Vito Corleone, the godfather in “The Godfather.”
But for Judge Straniere’s longtime fans, his new followers are late to the party. Charles Apotheker, an acting State Supreme Court justice in Rockland County, said he had been following the oeuvre for years.
Whenever he comes across a Straniere ruling, Justice Apotheker said, “I have to read it because I’m sure there will be some little twist or something that he wants to share that has very little to do with the decision.”
These rhetorical touches, Justice Apotheker said, set Judge Straniere apart from run-of-the-mill judges, who can be “just generally boring.”
In his courtroom on Castleton Avenue, Judge Straniere sometimes offers a chuckle or a pun, as he did one day recently, his cheeks rosy behind his bushy white mustache. But it is at his desk in his cozy chambers that his creativity is truly unleashed.
His cases bring all kinds of things to mind, he said. Like Bartholomew Cubbins, the Dr. Seuss character; Old Yeller; and Mad Magazine, all of which he has found relevant to one issue or another. “I have a mind that can remember all these ridiculous details,” he said.
That’s what we need in the foreclosure courts. Judges like Philip S. Straniere with “a mind that can remember all these ridiculous details.” Like the fact that when attorneys come into court with a New Century assignment of mortgage well after the trust has closed – it’s a no brainer… The judge should say, “don’t waste your time in front of the court. New Century is in bankruptcy and has been since April 2, 2007, and CANNOT assign mortgages to trusts after they have already closed. The bankruptcy judge washed his hands of loans that were sold prior to the bankruptcy. See Williams. Period… or get sanctioned for fabricating documents and bringing them into court.”
The pièce de résistance though – of Judge Staniere’s entire judgment was at the end in his:
I often wonder what the conversation is between the third party debt collector client and the law firm considering representing the creditor, such as the world famous Dewey, Cheatem & Howe, when they initially meet. It probably would go something like this.
Client: I need a lawyer to represent me on debt collection litigation.
Lawyer: Before I agree let me ask some questions.
Lawyer: Do you know the person you want to sue and have you ever met them?
Client: Well no.
Lawyer: Do you have a written agreement with the person whom you claim owes you the money?
Client: No again.
Lawyer: Do you have anything signed by the debtor showing they owe the debt?
Lawyer: Do you have a bill showing the debtor owes money?
Lawyer: Do you have something that shows the debtor made any payments on the obligation?
Lawyer: Do you have any relationship with the debtor?
Lawyer: Well how do you know the debtor owes you any money?
Client: I bought the debt by assignment from the original creditor and he gave me a computer print-out saying the debtor owes him money.
Lawyer: Do you have a copy of the assignment of the claim?
Lawyer: Do you know if the statute of limitations has run on the debt and what state’s law applies to the agreement?
Lawyer: So let me get this straight. You’ve never had any contact with the debtor, have no copy of an agreement or any documents to verify charges were made, have no personal knowledge of any thing regarding the account, no proof that you own the account and don’t know whether the statute of limitation has run.
Sounds good to me. I’ll take the case.“
Don’t ya just love it?!