KeyBank National Association v. BHMD BY On Chevron Inc. et al
| KeyBank National Association |
| Mordechai Gold, Mordehai Gold and BHMD BY On Chevron Inc. |
| 7:2019cv11482 |
| December 16, 2019 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Cathy Seibel |
| Contract: Other |
| 28 U.S.C. § 1332 |
| None |
Docket Report
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Filing 51
ATTACHMENT ORDER: WHEREAS Defendants have consented to the confirmation of the Order of Attachment Without Notice; NOW, THEREFORE, for the reasons set forth above and in the Order of Attachment Without Notice, IT IS HEREBY ORDERED that KeyBank's Motion to Confirm the Order of Attachment is GRANTED. (Signed by Judge Cathy Seibel on 2/11/2020) (mml)
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| Filing 50 PROPOSED ORDER. Document filed by KeyBank National Association. Related Document Number: #49 . (Mathieu, Emily) Proposed Order to be reviewed by Clerk's Office staff. |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #50 Proposed Order was reviewed and approved as to form. (dt) |
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Filing 49
MEMO ENDORSEMENT on re: #47 Letter filed by BHMD BY On Chevron Inc., Mordechai Gold. ENDORSEMENT: Plaintiff shall run by Mr. Mortner, and then submit to the Court, a proposed Order granting the motion to confirm the order of attachment with notice. SO ORDERED. (Signed by Judge Cathy Seibel on 2/3/2020) (mml)
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| Filing 48 MOTION to Compel Arbitration . Document filed by BHMD BY On Chevron Inc., Mordechai Gold. (Attachments: #1 Affidavit Declaration of Moshe Mortner, #2 Exhibit A - Amended Complaint, #3 Exhibit B - Merchant Processing Agreement (MPA), #4 Memorandum of Law in Support of Motion to Compel Arbitration).(Mortner, Richard) |
| Filing 47 LETTER addressed to Judge Cathy Seibel from Moshe Mortner dated 2/3/2020 re: OSC to Confirm Attachment Order. Document filed by BHMD BY On Chevron Inc., Mordechai Gold..(Mortner, Richard) |
| Filing 46 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED. Order of Attachment, served on JPMorgan Chase Bank on 12/30/19. Service was accepted by Richard Hylton, Pers. Banker, 253 Broadway, New York, NY 10007. Document filed by KeyBank National Association. (sc) |
| Filing 45 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED. Order of Attachment served on NorthEast Community Bank on 12/30/19. Service was accepted by Angemene Jimenez, Asst. Branch Manager, 72 W. Eckerson Rd., Spring Valley, NY 10977. Document filed by KeyBank National Association. (sc) |
| Filing 44 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Order of Attachment served on TrustCo Bank, 220 E. Hartsdale Ave., Hartsdale, NY on 12/31/19. Service was accepted by Jasmine Ambrose, Head Teller/Associate Banker, 20 Squadron Blvd., New City, NY 10956. Document filed by KeyBank National Association. (sc) |
| Filing 43 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED. Order of Attachment served on Wells Fargo Bank, 463 Broadway, New York, NY 10013 on 12/30/19. Service was accepted by Sonia Mendonca, Personal Banker, 154 Spring Valley Market Place, Spring Valley, NY 10977. Document filed by KeyBank National Association. (sc) |
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Filing 42
PRELIMINARY INJUNCTION ORDER: NOW, THEREFORE, for the reasons set forth above and those stated in KeyBank's Supporting Papers, the TRO Order, and on the record during the preliminary injunction hearing held on January 3, 2020, IT IS HEREBY ORDERED that KeyBank's application for a preliminary injunction is GRANTED as set forth below: I. This order applies to: 1) Defendant BHMD; 2) Defendant BHMD's officers, directors, employees and agents and those acting or purporting to act on its behalf; 3) Defendant Gold; 4) Defendant Gold's employees and agents and those acting or purporting to act on his behalf; 5) any person or entity acting for, with, through and/or in concert with Defendants; and 6) any person or entity to whom any Restrained Asset (as defined below) has been or is assigned, sold, pledged, paid, given or otherwise transferred outside the ordinary course of business, and who is aware of this Order. 2. A "Restrained Asset" is any money withdrawn from, drawn on or transferred out of BHMD's account # XXXXXXXX3429 at KeyBank, and any funds or assets (including tangible or intangible property and debt owed to BHMD or Gold) that are traceable to such money, as further set forth in this Order. (Signed by Judge Cathy Seibel on 1/15/2020) (mml)
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Filing 41
MEMO ENDORSEMENT on re: #40 Letter filed by KeyBank National Association. ENDORSEMENT: The TRO remains in effect until issue the PI order,which will be later today. SO ORDERED. (Signed by Judge Cathy Seibel on 1/15/2020) (mml)
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| Filing 40 LETTER addressed to Judge Cathy Seibel from Emily J. Mathieu dated 1/15/2020 re: Preliminary Injunction. Document filed by KeyBank National Association.(Mathieu, Emily) |
| Filing 39 SUMMONS RETURNED EXECUTED Summons and Complaint, served. BHMD BY On Chevron Inc. served on 1/8/2020, answer due 1/29/2020; Mordechai Gold served on 1/8/2020, answer due 1/29/2020. Service was accepted by Moshe Mortner, Esq.. Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 38 LETTER addressed to Judge Cathy Seibel from Emily J. Mathieu dated 1/14/2020 re: Injuction Order. Document filed by KeyBank National Association.(Mathieu, Emily) |
| Filing 37 LETTER addressed to Judge Cathy Seibel from Moshe Mortner dated 01/14/2020 re: Injunction Order, Attn: Max Bernstein, Esq.,. Document filed by BHMD BY On Chevron Inc., Mordechai Gold.(Mortner, Richard) |
| Filing 36 LETTER addressed to Judge Cathy Seibel from Emily J. Mathieu dated 1/13/2020 re: Proposed Preliminary Injunction Order. Document filed by KeyBank National Association.(Mathieu, Emily) |
| Filing 35 PROPOSED ORDER. Document filed by KeyBank National Association. Related Document Number: #6 . (Mathieu, Emily) Proposed Order to be reviewed by Clerk's Office staff. |
| Filing 34 LETTER addressed to Judge Cathy Seibel from Moshe Mortner dated 01/13/2020 re: Proposed Preliminary Injunction Order. Document filed by BHMD BY On Chevron Inc., Mordechai Gold.(Mortner, Richard) |
| Filing 33 PROPOSED ORDER. Document filed by BHMD BY On Chevron Inc., Mordechai Gold. Related Document Number: #6 . (Mortner, Richard) Proposed Order to be reviewed by Clerk's Office staff. |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #35 Proposed Order was reviewed and approved as to form. (km) |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #33 Proposed Order was reviewed and approved as to form. (dt) |
| Filing 32 AMENDED COMPLAINT amending #1 Complaint, against BHMD BY On Chevron Inc., Mordechai Gold.Document filed by KeyBank National Association. Related document: #1 Complaint,. (Attachments: #1 Exhibit A - BHMD Articles of Incorporation, #2 Exhibit B - MPA, #3 Exhibit C - Accounting of Account Deposits, #4 Exhibit D - Accounting of Account Debits, #5 Exhibit E - Accounting of Unfunded Chargebacks, #6 Exhibit F - Demand Letter)(Mathieu, Emily) |
| Filing 31 MEMORANDUM OF LAW re: #30 Proposed Order to Show Cause Without Emergency Relief in Support of Order Confirming the Order of Attachment Without Notice. Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 30 PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document filed by KeyBank National Association. (Mathieu, Emily) Proposed Order to be reviewed by Clerk's Office staff. |
| ***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. #29 HAS BEEN REJECTED. THIS IS A DUPLICATED DOCUMENT. Note to Attorney Emily Mathieu : This is a Duplicate Document. Do Not Re-File. (km) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Notice to attorney Emily Mathieu to RE-FILE Document No. #28 Proposed Order to Show Cause Without Emergency Relief. The filing is deficient for the following reason(s): The order to show cause and the memorandum need to be filed as separate entries. Re-file the document using the event type Proposed Order to Show Cause Without Emergency Relief found under the event list Proposed Orders. The Memorandum of law needs to be filed under Other Answers, Memorandum of Law (non-motion). (km) |
| Minute Entry for proceedings held before Judge Cathy Seibel: Show Cause Hearing held on 1/3/2020. The Court directs Plaintiff to submit a proposed Preliminary Injunction that conforms to referenced case Grupo Mexicano, and confer with Defendant(s). If the parties can not agree, then the Court directs the parties to submit dueling versions. Defendants' opposition to Plaintiff's Motion to Confirm Attachment and Defendants' Motion to Compel Arbitration to be submitted by February 3, 2020. Plaintiff's opposition to Defendants' Motion to Compel Arbitration and Plaintiff's Reply to Motion to Confirm Attachment to be submitted by March 5, 2020. Defendants' Reply to Motion to Compel Arbitration to be submitted by March 19, 2020. Temporary Restraining Order in effect until January 13, 2020. Plaintiff to submit proposed Preliminary Injunction to Defendant(s) by January 7, 2020; Defendant(s) to respond to proposed PI by January 10, 2020. Proposed PI to be submitted to the Court by January 13, 2020. The Court grants Plaintiff leave to amend Complaint. Amended Complaint to be completed as soon as possible. See transcript. (Court Reporter Christina Arends-Dieck) (wc) |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document No. #30 Proposed Order to Show Cause Without Emergency Relief was reviewed and approved as to form. (km) |
| Filing 29 FILING ERROR - DUPLICATE DOCKET ENTRY- PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document filed by KeyBank National Association. (Attachments: #1 Corrected Memorandum of Law in Support of Order Confirming the Order of Attachment Without Notice) (Mathieu, Emily) Proposed Order to be reviewed by Clerk's Office staff. Modified on 1/3/2020 (km). |
| Filing 28 FILING ERROR - DEFICIENT DOCKET ENTRY - PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document filed by KeyBank National Association. (Attachments: #1 Memorandum of Law in Support of Order Confirming the Order of Attachment Without Notice) (Mathieu, Emily) Proposed Order to be reviewed by Clerk's Office staff. Modified on 1/3/2020 (km). |
| Filing 27 REPLY MEMORANDUM OF LAW in Support re: #6 Order to Show Cause,,,,,,, . Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 26 DECLARATION of Deepak Kapoor in Support re: #7 Order,,,,,,,,,,,,,,,, #6 Order to Show Cause,,,,,,,. Document filed by KeyBank National Association. (Attachments: #1 Exhibit 1 - MPA, #2 Exhibit 2 - BHMD Articles of Incorporation, #3 Exhibit 3 - Fiserv Investigative Summary Letter, #4 Exhibit 4 - Accounting of Account Deposits, #5 Exhibit 5 - December 13, 2019 Chargeback Listing, #6 Exhibit 6 - Wire Report, #7 Exhibit 7 - Termination Letter, #8 Exhibit 8 - September 11, 2019 Fiserv email, #9 Exhibit 9 - November 25, 2019 Demand Letter, #10 Exhibit 10 - Gold and BHMD Lexis Reports)(Mathieu, Emily) |
| Filing 25 DECLARATION of Emily J. Mathieu in Support re: #7 Order,,,,,,,,,,,,,,,, #6 Order to Show Cause,,,,,,,. Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 24 MEMORANDUM OF LAW in Support re: #7 Order,,,,,,,,,,,,,,,, #6 Order to Show Cause,,,,,,, . Document filed by KeyBank National Association. (Mathieu, Emily) |
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Filing 23
ORDER granting #22 Letter Motion for Conference: We will discuss the proposed motion at the already scheduled 1/3/20 return date of the Order to Show Cause ("OSC"). Plaintiff shall state its position regarding arbitration as part of its reply to Defendants' response to the OSC. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy)
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| Filing 22 LETTER MOTION for Conference , Pre-Motion, addressed to Judge Cathy Seibel from Moshe Mortner dated December 26, 2019. Document filed by BHMD BY On Chevron Inc., Mordechai Gold.(Mortner, Richard) |
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Filing 21
ORDER granting #20 Motion for Anthony J. Rospert to Appear Pro Hac Vice (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy)
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| Filing 20 MOTION for Anthony J. Rospert to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-18369232. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by KeyBank National Association. (Attachments: #1 Affidavit of Anthony J. Rospert, #2 Exhibit A (Certificate of Good Standing), #3 Text of Proposed Order)(Rospert, Anthony) |
| >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #20 MOTION for Anthony J. Rospert to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-18369232. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) |
| Filing 19 MEMORANDUM OF LAW in Opposition re: #6 Order to Show Cause,,,,,,, . Document filed by BHMD BY On Chevron Inc., Mordechai Gold. (Mortner, Richard) |
| Filing 18 RESPONSE TO ORDER TO SHOW CAUSE re: #6 Order to Show Cause,,,,,,,. Document filed by BHMD BY On Chevron Inc., Mordechai Gold. (Mortner, Richard) |
| Filing 17 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by BHMD BY On Chevron Inc..(Mortner, Richard) |
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Filing 16
MEMO ENDORSEMENT on re: #15 Letter filed by KeyBank National Association. ENDORSEMENT: Yes, the TRO issued on 12/16/19 remains in full force and effect against both Defendants until further order of the Court. SO ORDERED. (Signed by Judge Cathy Seibel on 12/20/2019) (mml)
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| Filing 15 LETTER addressed to Judge Cathy Seibel from Emily J. Mathieu dated December 19, 2019 re: Temporary restraining order (TRO) issued on December 16, 2019. Document filed by KeyBank National Association.(Mathieu, Emily) |
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Filing 14
ORDER granting #13 Letter Motion for Extension of Time to File Response/Reply: I cannot accommodate those exact dates because of my schedule, but I can come close. Defendants' opposition due 12/25/19. Plaintiff's reply due 12/31/19. Hearing 1/3/20 at 9:30 am. Return date of Order to Show Cause is adjourned to 1/3/20 at 9:30 am. (This will not be an evidentiary hearing. If one is necessary, we will discuss on 1/3/20 the schedule for it.) (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy)
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| Filing 13 FIRST LETTER MOTION for Extension of Time to File Response/Reply as to #6 Order to Show Cause,,,,,,, addressed to Judge Cathy Seibel from Moshe Mortner dated December 19, 2019. Document filed by BHMD BY On Chevron Inc., Mordechai Gold. Return Date set for 12/23/2019 at 02:00 PM.(Mortner, Richard) |
| Filing 12 NOTICE OF APPEARANCE by Brian Keahi Steinwascher on behalf of KeyBank National Association. (Steinwascher, Brian) |
| Filing 11 NOTICE OF APPEARANCE by Richard Morris Mortner on behalf of BHMD BY On Chevron Inc., Mordechai Gold. (Mortner, Richard) |
| Filing 10 ELECTRONIC SUMMONS ISSUED as to Mordechai Gold. (dnh) |
| Filing 9 ELECTRONIC SUMMONS ISSUED as to BHMD BY On Chevron Inc.. (dnh) |
| Filing 8 AFFIDAVIT OF SERVICE of Order to Show Cause, Order of Attachment and Supporting Documents served on BHMD BY On Chevron Inc. d/b/a Bnai Yisroel and Mordechai Gold a/k/a Mordehai Gold on 12/16/19. Service was made by Overnight Courier. Document filed by KeyBank National Association. (Mathieu, Emily) |
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Filing 7
ORDER OF ATTACHMENT WITHOUT NOTICE: NOW, THEREFORE, IT IS HEREBY ORDERED that KeyBank's application for an Order of Attachment is granted, effective, unless earlier vacated, through the time of the entry of an execution or turnover order pursuant to Rule 69 of the Federal Rules of Civil Procedure and C.P.L.R. Article 52 following entry of a judgment in favor of KeyBank. IT IS FURTHER ORDERED that the amount to be secured by this Order of Attachment, inclusive of probable interest, costs, Marshal's fees, and expenses, shall be $630,400. IT IS FURTHER ORDERED that the U.S. Marshal for the Southern District of New York ("Marshal"), and/or the Sheriff of any county of the State of New York ("Sheriff") shall levy within its jurisdiction, at any time before final judgment, upon such real and personal property in which Defendants, jointly or separately, have an interest, and upon such debts owing Defendants, jointly or separately, as will secure and satisfy the sum of $630,400 plus additional pre- and post-judgment interest, including any tangible and intangible property of Defendants which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, including any intangible contract rights, as provided for in C.P.L.R. 5201(b), wherever located, whether within or without the State of New York, including but not limited to accounts in the name of either or both Defendants at the financial institutions named in the annexed Appendix A, which is hereby incorporated into and made part of this Order of Attachment. IT IS FURTHER ORDERED that in order to provide sufficient service and notice of this order, service of a copy of this order and of all related and supporting papers shall be deemed good and sufficient service if made as follows: by personal service or overnight courier to Defendants on or before December 17, 2019, at their address of 1 Preshburg Boulevard, Unit 30, Kiryas Joel, New York, 10950. IT IS FURTHER ORDERED that KeyBank's undertaking is fixed in the sum of $10,000.00 conditioned that KeyBank shall pay to Defendants an amount not exceeding $5000.00 for legal costs and damages which may be sustained by reason of attachment, and up to and not exceeding $1000.00 to the Marshal and/or Sheriff for allowable fees, if Defendant recovers judgment or if it is decided that KeyBank is not entitled to an attachment of the property of Defendants. IT IS FURTHER ORDERED that KeyBank shall: (a) move within 5 days after the levy upon Defendants, or upon such other date as the Court may set, for an order confirming this Order of Attachment; (b) give notice of the motion to confirm to Defendants by serving by hand delivery and/or overnight courier on Defendants at the address listed above; (c) give notice of the motion to confirm by hand delivery or overnight mail to any other garnishee(s) that have submitted a statement pursuant to C.P.L.R. 6219 disclosing that they are or may be in possession of property or debts subject to this Order of Attachment. IT IS FURTHER ORDERED that Defendants, their agents, subdivisions, servants, officers, employees, and attorneys, and all persons in possession of the property and/or debts described above, and all persons acting in concert or participation with the foregoing, and all persons receiving actual notice of this Order of Attachment by personal service or otherwise, are hereby prohibited until further order of this Court from selling, assigning, transferring, paying over to any person other than the Marshal and/or Sheriff, interfering with, otherwise disposing of, or acting in any other way affecting the value of such property of debt or directing or allowing any other person to do so, except that it is provided that nothing herein shall attach or restrain any property beyond those properties with an aggregate value sufficient to secure a sum $634,400. SO ORDERED. (Signed by Judge Cathy Seibel on 12/16/2019) (mml) (Main Document 7 replaced on 12/17/2019) (mml).
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Filing 6
ORDER TO SHOW CAUSE FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION: Defendants shall show cause as to why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure to: A. Enter a preliminary injunction order: (1) immediately restraining and enjoining Defendants, and all those acting for, with, through and/or in concert with them, directly or indirectly, from transferring, assigning, selling, pledging, paying or otherwise disposing of, any assets of Defendants, any interests of Defendants in tangible or intangible property, including personal property and/or any debt owed to Defendants, or permitting any such asset, property or debt to become subject to a security interest or lien, except as necessary to pay for reasonable and necessary living expenses, including but not limited to payment of reasonable rent, utilities and taxes, until further order of this Court, as further set forth in this order. IT IS FURTHER ORDERED that, copies of this Order together with the papers upon which it has been granted, be served upon Defendants (or their attorney who agrees to accept service on their behalf) by personal delivery or overnight courier, so as to be in hand on or before December 17, 2019, and that such service shall be deemed good and sufficient service; and it is further ORDERED that opposition papers, if any, shall be served and filed on or before December 19, 2019; and it is further ORDERED that reply papers, if any, shall be served and filed on or before December 20, 2019; and it is further ORDERED that counsel shall appear for oral argument on December 23, 2019 at 2pm. SO ORDERED. Show Cause Hearing set for 12/23/2019 at 02:00 PM in Courtroom 621, 300 Quarropas Street, White Plains, NY 10601 before Judge Cathy Seibel. Show Cause Response due by 12/19/2019. (Signed by Judge Cathy Seibel on 12/16/2019) (mml)
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| Filing 5 REQUEST FOR ISSUANCE OF SUMMONS as to Mordechai Gold a/k/a Mordehai Gold, re: #1 Complaint,. Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 4 REQUEST FOR ISSUANCE OF SUMMONS as to BHMD BY On Chevron Inc. d/b/a Bnai Yisroel, re: #1 Complaint,. Document filed by KeyBank National Association. (Mathieu, Emily) |
| Filing 3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent KeyCorp for KeyBank National Association. Document filed by KeyBank National Association.(Mathieu, Emily) |
| Filing 2 CIVIL COVER SHEET filed. (sj) |
| Filing 1 COMPLAINT against BHMD BY On Chevron Inc., Mordechai Gold. (Filing Fee $ 400.00, Receipt Number 465407017678)Document filed by KeyBank National Association. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit)(sj) |
| Magistrate Judge Paul E. Davison is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (sj) |
| Case Designated ECF. (sj) |
| Set/Reset Deadlines: (Replies due by 12/20/2019.), Set/Reset Hearings: (Oral Argument set for 12/23/2019 at 02:00 PM before Judge Cathy Seibel.) (mml) |
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