A Witness Writes In....(CLICK HERE FOR FULL STORY)

Court Report 07/26/2007 - This morning I accidentally witnessed a clearly erronous rulling of Hon. Francis Nicolai. The Defendant was the pro-se homeowner Ms. Sunshine, against whom there was a monetary ruling for $30,000 which she allegedely owned to the home owner assotiation and which would have to be satisfied by the sale of her home.....MORE....

The attorney of the homeowner association was presented too. According to Judge Nicolai, today's court appearance was about the sale of the home of Ms. Sunshine. Judge Nicolai noted that there is already a ruling against Ms. Sunshine by Hon. Belantoni.

Ms. Sunshine had a signed order to show cause for the stay of the ruling against her. The hearing on her order to show cause was scheduled for today's date. According to homeowner association's attorney the order to show cause was unproperly served by Ms. Sunshine - she simply faxed the two page order without any supporting document.

Ms. Sunshine requested a stay of the rulling against her since she had initiated an appeal by filing a Notice of Appeal. She claimed that depite the ruling agains her, she does not owe any money to the homeowner's association.

Ms. Sunshine stated that she has only $5000 available. When asked by Hon. Nicolai about her other possible financial sources, Ms. Sunshine replied that she can charge up to $20,000 on her credit cards, but she cannot take any cash advance. Ms. Sunshine stated that the APR of her credit cards is 22%.

Judge Nicolai did grant a stay of the monetary judgment against Ms Sunshine until November 5, 2007, provided that she pays to the homeowner association by 2PM tomorrow the amount of $5000 and in a few weeks the amount of $15,000 charged on her credit card.

There are two problems with Hon. Nicolai's ruling:

1. The condition of stay ($20,000) was extremely and unreasonably high for a three months stay (6% interest on $30,000 for 3 months is approximately $450).

2. The monetary part of the stay condition (the so called undertaking) shouldn't be handed to the homeowner's association. It should be posted to an account sometimes under the control of the court, but in any case out of reach of the homeowner's association and Ms. Sunshine.

Ms. Sunshine walked out of the court room seemingly happy by the rulling, which would allow her to keep her home for at least a couple of months.

What she didn't know was that pursuant to CPLR Article 55 19 she was entitled by law to a stay w/o a court order of the monetary judgment against her pending the appeal. Another thing that Ms. Sunshine was not aware of was that the condition of the stay should be an undertaking and not paying two thirds of the amount owed to the Plaintiff.

A reasonale undertaking most probably already existed - against the equity of Ms. Sunshine home Ms. Sunshine could have easily found an agency to issue her a surety bond.

All Ms. Sunshine needed to get the stay was to post the undertaking with the County Clerk.

Besides the good thing (preventing the immediate foreclosure of Ms. Sunshine's home), the rulling of Hon. Nicolai creates future problems for both litigants: If Ms. Sunshine wins the appeal, it is not clear if and how she could get back the $20,000 that she will pay to the homeowner's association. It is very likely that the association refuses to pay her back the money and this is a potential source of another lengthly and costly litigation.

There will be at least one compliance hearing in a couple of days, i.e. missed work and attorney fees for the litigants.

Probably there will be more hearings for the extention of the stay period since it is very unlikely that the appeal will be decided by November 5, 2007.

Ms. Sunshine will have to pay 22% APY (the actual yield is probably much higher) and it is not clear why does she need to pay such a high interest provided that she owns a home and $5000 in cash.

The clear beneficieries from Judge's Nicolai's today's rulling are the homeowner association's attorney (more hearings means more attorney fees) and Hon. Nicolai himself (as long as this attorney is a potential judicial campaign contributor). The clear losers are the taxpayers, who will pay the expenses of the prolonged litigation and countless court appearances and Ms. Sunshine, who is to pay 22% APR on her credit card debt.

I think Ms. Sunshine was screwed by Nicolai simply because she appeared pro-se.

Peter Petrov
07/26/2007,
White Plains, NY