Currently before this Court are (1) Plaintiff's motion seeking to stay their eviction pending resolution of this case on the merits, (2) Steven J. Baum P.C.'s and Patricia Esdinsky's (collectively, "Baum Defendants") Motion to Dismiss, and (3) EMC Mortgage Corporation's and MERS, Incorporated's (collectively, "Bank Defendants") Cross-Motion to Dismiss. Though it is tempting to summarily dispose of this matter as the previous Judges in this case have done, this Court will spell out its reasoning in an effort to prevent further Orders to Show Cause and additional related lawsuits.

Background

Despite its 2012 index number, this case stems from a foreclosure action filed in 2003. [*2]The history (like the papers reviewed in preparing this opinion) is long and littered with events and information irrelevant to the current motions. The following, as this Court sees it, are the relevant (and, seemingly, undisputed) facts:

On July 12, 2002, Helene Hamilton executed a note secured by a mortgage on the premises known as 39 Lott Place. The Mortgage (and possibly note) was delivered to MERS as nominee for First National Bank of Arizona. After making a total of three payments, Hamilton defaulted but still lives on the property more than ten years later.

EMC Mortgage Corp., through its then attorneys Druckman & Sinel, LLP began foreclosure proceedings in March of 2003. Rather than file a document styled as an Answer, Hamilton filed a "Counterclaim Complaint" appearing to allege, among other things, intelligible and otherwise, that EMC was not authorized to bring the foreclosure action. On February 15, 2005, Steven J. Baum P.C., EMC's new attorneys sought an Order of Reference which was granted a year later. In June of 2007, a Motion for Execution of Judgment of Foreclosure and Sale was filed on behalf of EMC. It was then that Plaintiff Bey made his entrance to the case, filing a very strange and mostly irrelevant opposition. Judge Anthony Cutrona granted EMC's motion in May of 2008 stating in his order that the opposition papers "speak for themselves, can only be described as incredibly bizarre and present no legal defense to this action or comprehendible counterclaims." On January 8, 2009, the subject premises was sold at auction and the foreclosure action ended.

Following a holdover proceeding initiated by EMC's counsel, the parties entered into a stipulation of settlement on June 11, 2009 under which Hamilton and Bey (collectively, "Plaintiffs") agreed to vacate the premises on or before August 31, 2009. The agreement was so-ordered by a Housing Court Judge. Consequently, the Civil Court issued a Judgment of Possession in favor of EMC and against Plaintiffs.

In early 2011, Plaintiffs commenced a new action in the Supreme Court and filed an Order to Show Cause seeking to stay the disposed foreclosure proceeding based on EMC's lack of standing to sue and failure to offer a mortgage modification. The Baum Defendants (here, on behalf of Esdinsky alone) filed an opposition and, subsequently, a Motion to Dismiss based both on res judicata and failure to state a cause of action. In June of 2010, following Plaintiff's Opposition and oral argument, Judge Mark Partnow denied Plaintiff's OSC on the record and via short form order. Thereafter and following filing of further papers, he granted Baum Defendants' motion and dismissed the case via short form order on November 15, 2011.

As this Court need not consider Plaintiffs' bankruptcy filings, that brings us to the present incarnation of the case. Plaintiffs again filed suit in January of 2012 seeking damages and to have the foreclosure declared null and void on the basis of fraud stemming from EMC's lack of standing to bring the 2003 suit. As with the previous Supreme Court case, an Emergency OSC was again filed to stay eviction pending resolution of this action on the merits. The Baum Defendants responded by filing a Motion to Dismiss on numerous grounds including res adjudicata, laches, failure to state a cause of action, and that the fraud claims are barred by the statute of limitations. Opposition, Reply, and Sur-reply papers were also filed. The Bank Defendants filed a similar Cross-Motion to Dismiss in August.

Discussion

As set forth above, there has been a lot of motion practice in the related actions. [*3]Plaintiffs have actively participated in the foreclosure case and subsequent suits (and freely admit as much in their papers) . (More accurately, Hamilton was involved since the initial papers in 2003 and Bey, who was not a party to the mortgage or foreclosure, has been filing affidavits since 2007.) The issue of standing appears to have been raised as early as the "Counterclaim Complaint" filed by Hamilton in mid-2003 and, if so, was considered by Judge Cutrona in granting the Order of Reference and the Judgement of Foreclosure and Sale. Standing (along with related allegations of fraud) was also raised, this time clearly and explicitly, in the 2011 action which was dismissed by Judge Partnow.

Collateral Estoppel

Collateral estoppel precludes a party from relitigating an issue clearly raised in a prior action or proceeding and decided against that party or those in privity (Headley v New York City Transit Authority, 100 AD3d 700 [2d Dept 2012][citations omitted]). "It must be shown that the identical issue was decided in the prior action or proceeding, is decisive in the present action, and that the party to be precluded from relitigating the issue had a full and fair opportunity to contest it" (Id.). Fraud and the underlying standing issues were the basis of the 2011 action. While Judge Partnow's opinions do not spell out his reasons for denying the Order to Show Cause and dismissing the case, Plaintiffs' claims were considered and rejected.

Res Adjudicata

Even were collateral estoppel, issue preclusion, to not attach here, res adjudicata would. "Under New York's transactional approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" (QFI, Inc. v Shirley, 60 AD3d 656, 657 [2d Dept 2009], quoting O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see also 83-17 Broadway Corp. v Debcon Financial Services, Inc., 39 AD3d 583, 584 [2d Dept 2007]). As applied to foreclosures, "[a] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" (Signature Bank v Epstein, 95 AD3d 1199, 1200 [2d Dept 2012][citations omitted]). Thus, whether or not the issues of standing and fraud were raised in the previous actions, they are waived as defenses to the foreclosure in light of the Judgment in 2008 and sale held in 2009.

Plaintiffs' various claims for monetary damages for fraud (in various forms) and unjust enrichment are likewise barred in light of the foreclosure and 2011 suit (see, for example, Osborne v Rossrock Fund II, L.P., 82 AD3d 727, 728 [2d Dept. 2011] [barring breach of contract claim in light of foreclosure judgment stemming from same transaction]; Cafferty v Cahill, 53 AD3d 1007, 1008 [3d Dept. 2008][Subsequent claims that party fraudulently concealed certain facts and violated various ethical standards during the course of the foreclosure proceeding barred by res judicata]; CLR Brooklyn Realty Corp. v Shapiro, 39 AD3d 790 [2d Dept 2007][Suit seeking damages for fraud in procuring a foreclosure judgment barred by collateral estoppel in light of earlier motion to vacate foreclosure and sale]).

Based on the above it is hereby [*4]

ORDERED that Plaintiff's Motion is DENIED and the stay of the warrant of eviction and further foreclosure proceedings is lifted; it is further

ORDERED that Baum Defendants' Motion to Dismiss and Bank Defendants' Motion to Dismiss are both GRANTED and this case is dismissed with prejudice.

The foregoing constitutes the decision and order of the Court.

ENTER:

_______________________________

Hon. Noach Dear, A.J.S.C.