involves the plaintiffs attempting to vacate its own judgment through a two fourteen zero one petition what started out as a garden variety mortgage foreclosure well somewhat of a garden variety mortgage foreclosure action because it involves a defendant that's a rather then a condo association the difference being a co op is owned by all the units are owned by the corporation and each owner gets specific shares of that corporation so we're not foreclosing real property we're for closing personal property which is the shares a co op a condo in other words there would be title to each individual unit so this is somewhat unusual in that regard but but i  order confirming sale was entered and the order confirming sale found that our interests are higher and superior to that of the co op and that all should all the interests of all defendants including the co op would be terminated and further specifically geared towards co ops that the assessments wouldn't begin until after the shares of the co op were transferred pursuant to the order confirming sale which was entered i believe in august two thousand and ten unbeknownst to us right after the case was filed in august of zero nine shortly after that i think it was in november of zero nine without now which without any authority apparently because transferred the shares to the pla mortgage there by a parent leaning in their books at least making the plaintiffs the owner of the unit even though the court had not ordered it even though the middle had not gone to the judgment or sale and the case had just been filed they prematurely transferred the shares part of the language in the gaps in the shares themselves that citi mortgage except the transfer of the shares in order to be effective that never happened because we didn't even know about it but it's significant in that the basis for our two fourteen zero one was newly discovered evidence it was two parts one that we did not find out until the co op came in after the confirmation took place in august of two thousand and ten that the co op came into vacate after the case was essentially over to vacate our orders and say that we have a secure your interest which is something that had never we're security or any interest that the plaintiff takes would would be us a subordinate to our interests but significantly when judgment was entered summary judgment was entered the court found otherwise and entered judgment without objection by t so like i said we didn't pay too much attention to it time because they are everybody claims that in my experience in thirty years of practicing i've never seen one that was superior this case proved to be the exception again an unusual case with twists and turns but they did not object to entry the judgment they did not raise the issue of judgment was entered the cow or found that the rights of the plaintiffs of the mortgage company were superior to their co op it wasn't till after order but the fact of the matter is that we did not find out until after the case was over i don't know what we could have done up to that point counsel says although there was a lack of diligence even your  question lends itself to that but the fact of the matter is it and i refer back to what i said it was significant that they transferred the shares in november of zero nine to the plaintiffs we were entitle to notice of the d conversion x we found out in october of two thousand and ten took place in march of two thousand and ten and we were not notified even though we are the owner but they claim they did build a player they disaffection a dispute is no not the association never get that into october of two thousand and ten after the sale was over after that the email that right to email references we had notified to each and every time we took action in this issue then we never received  citi mortgage or council for citi mortgage myself was notified was an act of two thousand and ten after the case was over that it was de converted which leads itself to the next question is there even a co op at the time when they came in to vacating the men or was it now a condo association that the conversion took place well before that so i think that what we have here is clearly plaintiffs did not know about this d conversion certainly  aware that there was over fifty thousand dollars in bag assessments but but the key to groton in our argument is that the d conversion process of essentially meant the purchase nothing at the traditional sale because we had to now buy back the unit for over one hundred sixty seven thousand dollars a unit which we had figured was worth about twenty five to thirty thousand dollars as it was so it had he known that and i think the basis  our two fourteen zero one but i think that if the court was was to use its equitable jurisdiction equate newly discovered evidence with the mirror korea's defense i think clearly what could be more m the newly discovered that in fact it wasn't even a co op anymore it wasn't even a condo it was now condos and that what we bought was nothing we had to buy it back from them for up to one hundred sixty seven thousand dollars w economic dynamics of the issue is it's a fair question but i think the answer is that the court would hear because it would wonder well wait a second is this the co op or is it now condo association i think it was entitle to know that it was deacon for it which would have put certainly us on notice that there was a different entity standing before the court maybe there standing maybe there wasn't standing i don't know but the fact of the matter is it should have been disclosed to the court that it is now been de converted back in march of two thousand standing i mean i think you have a duty to quote the beef to to stand before the court and you have to have a duty to have standing if you don't have standing or if the if the entity that you are representing has changed i think you need to substitute the purpose i will tell you court to disclose and prove your standing that you are the holder of the interest you step back and you go even one step further it's do they have to see him to even raise the objection to a motion of vacate since they're not the oath they want the owner of the unit i mean it doesn't make sense except for they want to windfall here it's about dollars i think they had states the clear impression here is they're not interested in a city mortgage being a happy owner of one of these now condos but i think it's a question of they want out they want to reap a windfall here but the fact of the matter is they had a duty does to disclose to the court if nothing else that it is now a different entity that is not the co op anymore that it is now the the  condo association and that the interests have changed now my question would be also is that assuming that it is now a condo there has to be a deed of conveyance showing the real estate has been transferred now to the owner because it's nat part of the co op anymore instead shares but the fact of the matter is is that the shares were transferred prematurely they were transferred after the sales confirmed in august of two thousand and and ten the shares themselves the rules say is that city has to  decide to decide who is entitle to the ownership shares i think they have to wait for a court order to better effect but what it does is it illustrates it's a good point but it illustrates the fact that this is all about money they could transfer this the city mortgage fast enough because they want they want the dollars but the fact the meter is in the bottom line is newly discovered evidence if this is a newly discovered evidence that use you want to sell you want nothing because you didn't know that the units had been converted prior to the entry of your supplier to them coming into court with no disclosure that it is now a condo instead of a co op and you actually we have to buy in to buy our property back i can't imagine what would be newly discovered evidence we didn't know it we know we would not have proceeded as we did but the fact of the matter is that when they came into a man did say oh yeah by the way we're secure ear it was after the case was over confirmation and taken place i don't know what choice done what else could i have done except come in to say gee we want to vacate our own judgment because we didn't know we actually have nothing so in that their rights are superior because they didn't come in till after the fact to assert the superiority of their rights  g what their answer says they didn't object to the entry to judgment so i think in that regard we were doing and we did everything that was necessary to come in i don't know what else we could have done our hands were kind of tight because they didn't come until if the sales confirm in the seal confirmation order which still stand says we're sapir ian so you've got a conflict in those two wars and i don't know how you could reconcile it under the circumstances but i think that your simcoe who i peer before almost every day is a very fine judge the master of it's complaint it controls the litigation and as such i should be able to come in and i think it's questionable whether i need to even plead a meritorious defense since i control my own litigation and i'm the master of my complaint letter i need to judge well i supposed it may not be an exception but i think that it needs to be language needs to be fine tuned to say instead of meritorious defense it needs to be a good  reason likelihood of success on the merits but how can you have a mere trace defense to your own action or player or point i think it's a legal one possibility so i think that judge simple may have meant but i think that the only rule in the technicalities you didn't state in america is defense therefore you you did meet a threshold issue of two fourteen zero one so under the circumstances i think newly discovered evidence would would would stand in for meritorious defense other words just simple want to good reason and he just technically said was there a good enough reason was there newly discovered evidence it wasn't until after the fact we had no choice we couldn't come in or a lawyer because they hadn't raised the issue before sale confirmation of the marzano case the confirmations the final order again my son  good morning your honor sir christopher hines going to be half of the defendant appleby five thousand east and avenue building corporation may please the court so i think what plaintiff has just demonstrated to you was that the only reason that the before your honor's is because it was essentially a failed business endeavor and it wasn't necessarily a lack of appreciation of the obligations attendant with ownership interests of the shares it was rather a lack of appreciation of the amounts associated with those obligations and i think counsel did a fairly good job of reciting the facts and they are quite nuanced here because we're not dealing with a straightforward foreclosure of real estate because we are dealing with a co op and as your honour's know a co op is fundamentally different than a condominium in that you own shares which entitle you to the ownership of the corporation and part and parcel to that in attendant with that is the ability to negotiate and execute a proprietary lease you have a lease holder in the unit i think we need to be very careful in understanding and appreciating that distinction and the reason that that is important  because towards the end of the presentation counsel for plaintiff had said that the defendant had an affirmative obligation to come before the court and advise the court that this was a completed conversion and as a consequence this is no longer a co op it's a condo there's nothing in the record to suggest that the e mail that they attach to the fourteen zero one motion simply says that a vote a vote in march of two thousand and ten was taken to start the process and i can represent to your honor's as being a part of that process my law firm handles this it is a process it's not simply you take a vote mend the bylaws and then once that happens shares are cancelled and then there is a deed that is issued because again the corporation owns the units the borrower in this instance didn't own the unit and by virtue of their judgment a foreclosure but wonder doesn't own the unit in this particular case so we need to be very careful about that and because of that it's very important to understand again the distinction between the obligations of being a judgment creditor and the i guess the amounts associated with those obligations one thing that actually there are a couple things that plaintiff really didn't hit on and i think it's very critical particularly to just to stir buzz point about whether lender was on notice prior to the entry of the judgment  foreclosure and indeed prior to the entry of the order confirming the sale and i use that term loosely because they're technically wasn't a sale and i do want to bring your your honour's attention to it there was a point in my brief where i inadvertently referred to the stock i recognition agreements between the co op and the lender which establishes certain rights of the parties and one of those rights is the co op's right of any disposition of the shares to take out of that the monies that would be used to satisfy any back assessments if you will also the borrower in the co op or parties to the proprietary lease agreement the security agreement to which lender was a party with the borrower outlines all of the quote unquote ownership documents which which they took possession including the proprietary lease agreement which again outlines all the obligations of the holder of the shares so the propriety of the lease agreement isn't a part of the record it wasn't made a part of the complaint but there are certain ramifications of the obligations that are the reflected in their criteria lease agreement namely it obligates the bar were to pay cessna's for the common elements within the within the co op the borrower being again the owner of the shares which is by extension an owner of a part of the corporation after they've filed their complaint and is just a story but identified we filed an answer and we filed in the form of the defense and we attached to that answer es that there was a claim to back assessments interestingly after the judgment a foreclosure was entered in they refer to this in the brief and it's a matter of public record the court filed an even proceeding there is now a pending action in the municipal district if we're still entering the vision action or for splintering detainer action against citi mortgage for these back assessments they knew at the time that we had bio this in critically this was filed in april of two thousand and ten this was filed before this judicial sale this was filed before they moved for the confirmation of sale and this was filed before the order confirming the sale so they knew that the co op had established at least a claim against citi mortgage for the payment of these back assessments it's the obligation so i really don't think it i don't think it's necessarily  critically again and this is what's interesting about because the judge the order confirming the judicial sale because it really does contemplate the i guess it in ownership right in there in the real estate and usually attendant version from a co op to a condominium is done simply by boat or of a supermajority vote of the board it's a the co op this it was an after the complaint was filed that it's two counts of the complaint one count is the foreclosure the second count as a directive to the co op to transfer the shares to the co op they transfer the shares  absolutely and it did and it was in it and it really doesn't matter when the shares were transferred because again the obligation is still the same whether the shares were transferred in november of two thousand and ten or were they were they were transferred after the entry of the order came from the judicial sale the effect the same because they're going to be on the line for the assessments of the holder of the shows that takes the place of the tenant slash bar were under the proprietary lease agreement so again and that's why i want to emphasize and it's a critical distinction to plaintiff they attempt to characterize the quote unquote newly discovered evidence as a an obligation to have to pay well the obligation was set for from the outset of the case it's really the amount associated with that obligation and  significant that they never objected to the co ops fourteen zero one motion which sought to modify the judgment of foreclosure which would have simply made it in conformance with the recognition agreement in terms of who is responsible for what's in priority and things attendant with those issues they didn't seek to object to the fourteen one they knew that there was an obligation at that time they knew that that the co op was asserting a claim based upon that obligation because we again we know that there was any addiction proceeding that was instituted long months before that they never objected they never objected to the entry of the september second order which mod fied the judgment of foreclosure it wasn't until two months after that order was entered until they found out that well it's not necessarily the thirty thousand dollars in back arrears for which w responsible we now think it's well in excess of one hundred thousand dollars in the difference was the special assessment that was levied against the tenants within the co op which is part of the process of the d conversion and the way that they come up with the amount of the special assessment it's based upon the valuation of the actual unit itself and again this in a city case in the second district and in this district case of harper square actually lays out the process so the question becomes how does the in amount based upon an obligation which you assume as a judgment creditor constitute a newly discovered evidence such that if presented to the trial court the trial court when the banter the judgment and again just to stir this point was right on point it need that is the threshold issue whether if presented to the trial court the trial court would have would have vacated the judgment of foreclosure ok so it is five thousand dollars now newly discovered evidence is thirty thousand dollars not newly discovered it's but one hundred thousand dollars is newly discovered evidence i submit to the court that it's not the trial court's domain nor is it it obligation to be inquiring of every plaintiff the ferrett to ensure that they are in fact making a sound business decision and the policy considerations of this case are a pretty important because what plaintiff is advocating is inability of any lender after the fact after foreclosure in judgment after confirmation of sale in predictably after any victualling particularly if we're dealing with with a personal residence to come back and say i really didn't appreciate the amounts that i would have to assume or i didn't really appreciate the obligations upon me as a judgment creditor you'd see this all the time if there were back taxes due were say for instance if the land was contaminated and it was just brought to the lenders attention and they have to now clean it up they could then go back to the trial court and say judge i really didn't know this because it would be a hundred thousand dollars judgment is now turned into a two million dollar obligation that's not the trial court's domain and that's not the trial court's responsibility plaintiff is correct they are essentially master of their litigation domain they're the ones who drive the case they are the ones who need to appreciate the inherent risks there are benefits associated with assuming a judgment there also inherent risks involved as well and you can't come in after the fact simply as prize of everything having to do with the the process itself unfortunately i can't answer the question and i don't want to misrepresent to represent the court something that i really don't know about i do know that the again the shows were transferred but again it was because the plaintiff had requested that some was like seeking a breach of contract seeking fifty thousand dollars having the defendant pay the fifty thousand dollars prior to judgment and then after receipt judgment say judge this isn't a paid me beforehand well this is what you ask for and this is what we're giving you and  again that motion was filed significantly before the order confirming the sale they knew that and again they never protested at the entry of their order confirming sally never protested at the hearing of our fourteen  indeed at the entry of the earl of modifying the judgment of foreclosure and in fact in their brief they acknowledge that based upon the modification of that order it then obligates them to pay back assessments a couple of other things that i know might my time's running short i do want to hit on some procedural things typically a fourth you know one is accompanied by an affidavit this was in the statute requires that this was not accompanied by an affidavit there are many references to the record that simply aren't incorporated that there was no affidavit of course that's what it was i don't want to exult form over substance but i do believe that may be a critical component but again there's also a waiver issue here based upon their failure to object and this really drives home the point of the distinction between no knowing about an obligation of which they didn't didn't know and not knowing about the amounts attendant with that obligation they knew at the september second the world or excuse me at the hearing on september second to modify the foreclosure judgment that by wa if the time that we try to get an answer there was eighteen thousand dollars owed at the time we filed them even diction there was thirty one thousand dollars owed i can tell you with the special assessment today it's now hundred eighty thousand dollars but that's again the entire value of the unit and this is something about which they did they they didn't learn until october but again they knew of the obligation and that's not newly discovered evidence at least of the kind that would typically support a basis to vacate a judgment under fourteen zero one  honor's that it is not the domain of the trial court to be inquiring of late against interests to be inquiring of the consequences and to be inquiring of whether this is something that they truly inten before a judgment is entered that is the obligation of the plaintiffs in fourteen zero one doesn't relieve you of those consequences your honor this was not newly discovered evidence this is something about which they knew they were attempting to turn back the clock and we submit that there is units so they can rent it out and mitigate their damages so that's not unusual what is unusual is that still pending it hasn't resolved at this point under the circumstances indisputed but the fact of the matter is in that action there see that possession and want the money they want to judgment against citi mortgage for whatever the back assessments are now probably upwards of a hundred thousand dollars who knows what they are but the back assessments are not the same as the conversion issue the back assessment issue again council stood here and said they didn't know about it until after on the nine two or the ninth for two thousand and ten order amending the judgment which was after the case was there for us to do a better point when we found out and we found out and didn't even know about the eikenberry at that point there was nowhere in any pleading about the d conversion process that is coming says it's been going on for two years but the fact of the matter is is that what counsel says here assessments turned any on the other me and they didn't object when judgment was entered we were entitled to enter to rely upon the judgment that says that they're not entitled to bag assessments they didn't come into court and object to it but it superiority and i've seen that this is the only case i found i have seen all my years that that actually there is a superiority and that's only because of the documents that they had which were apparently  no objection by my city when the mortgage was issued but that's neither here nor there but again the same thing if there faulting us for they didn't come in that they did you know they didn't do anything they said on their rights the same thing could be said of them when they came in didn't come into court for the object for the doing for two years that my affidavit says that citi mortgage and myself as counsel for plaintiffs and i was in on this case since zero nine we never got notice that an affidavit on the record before you called a special session and we would have to buy our unit back council now says for one hundred eighty thousand dollars so had they called him in and represented that to the court it would have been a representation us as well but the fact that a matter is that as i stand here converted there's nothing in the record why because they didn't want it in the record they didn't want anybody to know about the conversion there's not one single word in the record about the conversion and  place so or anything they did this for one reason and one reason only they wanted to us to get it get you this unit and they want to money judgment against them so for whatever reason and for whatever amount and we're still dealing with the eviction action which will i guess be resolved after the disposition of this case one way or the other but that was for possession only at one point and now they also want a money judgment but the fact of matter is is that we haven't set our rights we did we did not and then again i will tell you because i personally should have gotten notice as the foreclosing attorney i got no notice whatsoever of any conversion process and the first time i ever heard from ms cummings was in october after the as i stood here there was nothing in the record whatsoever about when he was d converter wasn't he converted because they didn't raise it they didn't plead it they didn't even say anything in in a in opposition to my affidavit on the what is it now he's saying that it's still not completed that's the first time i'm hearing a letter from this coming says in march of two thousand and ten he was both is a deacon for your older group you're getting notice of the meetings here you're rising yourself what's going on with you didn't get  past which a good portion of the back assessments are attorneys fees you know the fact the matter is whether or not we knew with the end of the day in the end of the day being after confirmation that yeah we were going to be responsible for the back assessments is one thing but the reason we came in that the newly discovered evidence aside from the fact of of that after the confirmation order which is the final order that is the fact that it was going to be converted so it's two problems as it is you you understood we have nothing want nothing and we had no choice but to come in after the case was over because that that's the first time we found out about my day after david stands on rebutting we did not get notice i did was the first time i ever talked to ms khan and the