Hoyer v. Bank of America, National Association et al
| Yvette Hoyer |
| Bank of America, National Association, First Franklin, A division of Nat City Bank of Indiana, First Franklin Financial Corporation, BSI Financial Services, Inc., DTA SOLUTIONS LLC, Gustavia Home, LLC, Credit Control, LLC, Land Home Financial Services, Inc. and Wilmington Trust |
| 1:2022cv03507 |
| June 15, 2022 |
| US District Court for the Eastern District of New York |
| Eric R Komitee |
| Peggy Kuo |
| Negotiable Instrument |
| 42 U.S.C. § 1471 Declaratory & Injunctive Relief - Foreclo |
| None |
Docket Report
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| Filing 10 ANSWER to #1 Complaint,, by Credit Control, LLC. (Little, Brendan) |
| Filing 9 NOTICE OF APPEAL as to Order on Motion for Order to Show Cause,,,,,,,,,,,,,,,,,,,, by Yvette Hoyer. Filing fee $ 505, receipt number BNYEDC-15699058. (Blackman, Nigel) |
| Filing 8 NOTICE OF APPEAL as to Order on Motion for Order to Show Cause,,,,,,,,,,,,,,,,,,,, by Yvette Hoyer. (Blackman, Nigel) |
| Electronic Index to Record on Appeal sent to US Court of Appeals. #9 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Townsend, Tasha) |
| Filing 7 Emergency MOTION for Order to Show Cause for Injunctive Relief against Defendant, Gustava Homes, LLC from selling real property known as 361 Vernon Ave, Brooklyn, NY by Yvette Hoyer. (Attachments: #1 Attorney Certification, #2 Notice of Sale, #3 Affidavit Affidavit of Yvette Hoyer, #4 Complaint) (Blackman, Nigel) |
ORDER denying #7 Motion for Order to Show Cause. This matter is closely related to Gustavia Home LLC v. Hoyer et al., No. 16-CV-4015 (PKC) (VMS), filed by Gustavia Home LLC ("Gustavia") in July 2016 against multiple defendants, including Yvette Hoyer--the Plaintiff in this case, seeking to foreclose on a mortgage encumbering the property located at 361 Vernon Avenue, Brooklyn, New York 11206 (the "Property"). The Court recites the history of the related case as it is directly relevant here. All cites in the following three paragraphs are to the related docket, No. 16-CV-4015. On January 24, 2019, the Court granted Gustavia's motion for summary judgment (see Dkt. 73) and subsequently So Ordered the judgment of foreclosure and sale (see 2/19/2019 Docket Order). This started a chain of events by which Hoyer and her co-defendant Shana M. Paul attempted to prevent the foreclosure sale. In February 2019, Hoyer and Paul appealed the summary judgment order to the Second Circuit and sought to stay the foreclosure sale on an emergency basis. (See Dkt. 75.) In May 2019, the Second Circuit denied the motion to stay after reviewing the record and holding oral argument. (See Dkt. 83.) Similarly, in July 2019, after holding a hearing, the Court denied Paul's motion to stay the foreclosure sale. (See 7/17/2019 Minute Entry.) A day later, the Second Circuit denied Hoyer and Paul's motion to reconsider the denial to stay the foreclosure sale pending appeal. (See Dkt. 90.) On the same day, Hoyer filed for bankruptcy in this District, which automatically stayed the appeal and the proceedings before this Court. (See Dkt. 91.) In September 2019, while the bankruptcy stay was still in place, Paul moved to set aside the summary judgment, arguing that there is a broken chain of assignments from First Franklin, A Division of National City Bank of Indiana, the original lender and originator of the Note and Mortgage, to Gustavia, such that Gustavia did not validly hold the Note and Mortgage when it commenced the action. (See Dkt. 94.) After Hoyer's bankruptcy case closed, on March 25, 2021, the Court denied Paul's motion to set aside the summary judgment order. (See Dkt. 108.) At 4:00 a.m. on March 23, 2022, Hoyer filed an emergency motion to stay the foreclosure sale--scheduled for the next day at 12:15 p.m. Hoyer argued, among other things, that she discovered evidence that challenges the chain of title to the Property that makes it "pellucidly" clear that Gustavia's "documents presented as evidence in the complaint are in fact false or at minimum highly questionable," that Gustavia did not have standing to bring the action, and the Court lacked subject matter jurisdiction. (See Dkt. 111.) The Court denied the motion, finding that it was untimely, devoid of any direct and clear argument, utterly failed to meet Hoyer's burden for equitable relief, and did not demonstrate that there has been a "significant change" in factual conditions or in law underlying the January 24, 2019 summary judgment order. (See Dkt. 113.) The Court also found that the fact that Hoyer filed the motion over three years after the January 24, 2019 order was issued, and on the eve of the foreclosure sale of the Property, indicated that Hoyer was simply attempting to relitigate the issues and claims that the Court previously dismissed. (Id.) As is apparent from the history of the related case, this matter and the emergency motion for a temporary restraining order are yet another attempt to prevent the foreclosure sale of the Property. Once again, Hoyer's motion was filed on the eve of the scheduled sale--at 1:51 a.m. on June 16, 2022, with the sale scheduled for 12:30 p.m. the same day. The motion is based on short declarations of Hoyer and her counsel, without a memorandum of law, which regurgitate the same arguments previously rejected by the Court. Accordingly, the Court finds that Hoyer has failed to demonstrate the elements warranting a temporary restraining order and denies the #7 emergency motion. See Cnty. of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008) (a plaintiff seeking a temporary restraining order is required to show "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor."); New York ex rel. James v. Griepp, 11 F.4th 174, 177 (2d Cir. 2021) (noting that a preliminary injunction, which is analyzed under the same standard as a temporary restraining order, "should not be granted unless the movant, by a clear showing, carries the burden of persuasion" (citations omitted)). The foreclosure sale may proceed as scheduled. Ordered by Judge Pamela K. Chen on 6/16/2022. (Mahkamova, Shirin)
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| Filing 6 Summons Issued as to All Defendants. (Bowens, Priscilla) |
| Filing 5 Proposed Summons. by Yvette Hoyer (Blackman, Nigel) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 2 Proposed Summons.Civil Cover Sheet.. by Yvette Hoyer (Attachments: #1 Civil Coversheet) (Blackman, Nigel) |
| Filing 1 COMPLAINT against All Defendants filing fee $ 402, receipt number ANYEDC-15661565 Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by Yvette Hoyer. (Attachments: #1 Exhibit 1st Mortgage, #2 Exhibit 2nd Mortgage, #3 Exhibit First Franklin Assignment, #4 Exhibit Dept of Finance Page, #5 Exhibit First Franklin Invoices, #6 Exhibit Gustavia Homes Complaint, #7 Exhibit BSI Invoices, #8 Exhibit Wimington Assignment, #9 Exhibit Credit Control Assignment, #10 Exhibit Landhomes Invoices, #11 Exhibit Notice of Default) (Blackman, Nigel) |
| Your proposed summons was not issued for one of the following reasons: Did not use the correct Summons form AO 440 Rev 6/12, SUMMONS IN A CIVIL ACTION or AO 441 Rev 7/10, SUMMONS ON A THIRD-PARTY COMPLAINT., Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (Bowens, Priscilla) |
| Case Assigned to Judge Eric R. Komitee and Magistrate Judge Peggy Kuo. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) |
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