Deutsche Bank National Trust Company v. Shepard et al
| New York Eastern District Court | |
| Judge: | Hector Gonzalez |
| Case #: | 2:25-cv-00232 |
| Nature of Suit | 220 Real Property - Foreclosure |
| Cause | 28:1332 Diversity-Contract Default |
| Case Filed: | Jan 14, 2025 |
| Terminated: | Feb 27, 2025 |
| Last checked: Friday Feb 28, 2025 3:52 AM EST |
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Defendant
John Doe #1 through John Doe #12
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Defendant
Irene Shepard
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Represented By
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Defendant
Thomas Shepard
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Represented By
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Defendant
The Bank of New York Mellon
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Plaintiff
Deutsche Bank National Trust Company
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Represented By
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| TERMINATED PARTIES | |
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Defendant
Town of Babylon
Terminated: 02/20/2025
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Represented By
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Defendant
West Gilgo Beach Association, Inc.
Terminated: 02/20/2025
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Represented By
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| Docket last updated: 48 minutes ago |
| Thursday, February 27, 2025 | ||
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order
Order Staying Case ~Util - Case Stayed
Thu 02/27 11:41 AM
ORDER: The Court has received Plaintiff's letter, see ECF No.28 , and the Stipulation to Extend Time to Answer filed by Plaintiff and Defendants Irene Shepard and Thomas Shepard, see ECF No.27 . In light of the parties' representation that Defendants have accepted the "trial modification offer," and have already made the first trial payment, the Court STAYS this action and, for the Court's convenience only, administratively closes it. The Court construes the parties' stipulation as a motion for an extension of time to answer, which the Court grants. Defendants Irene Shepard and Thomas Shepard shall answer or otherwise respond to the Complaint on or before June 2, 2025. Alternatively, if the case is settled by that date, Plaintiff shall file a notice of voluntary dismissal with respect to its claims against these Defendants and any other remaining Defendants. Ordered by Judge Hector Gonzalez on 2/27/2025. (PN) |
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utility
Incomplete ACO Case Termination/Statistical/Non Reportable Closing
Thu 02/27 11:42 AM
Incomplete ACO Case Termination/Statistical/Non Reportable Closing. (PN) |
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| Wednesday, February 26, 2025 | ||
| 28 | 28
misc
Letter
Wed 02/26 6:02 PM
Letter by Deutsche Bank National Trust Company (Howland, Sean) |
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| Tuesday, February 25, 2025 | ||
| 27 | 27
misc
Stipulation
Tue 02/25 11:31 AM
STIPULATION To Extend Time to Answer by Irene Shepard, Thomas Shepard (Baron, Peter) |
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| Thursday, February 20, 2025 | ||
| 26 | 26
notice
Notice of Appearance
Thu 02/20 12:14 PM
NOTICE of Appearance by Willis B. Carman on behalf of West Gilgo Beach Association, Inc. (aty to be noticed) (Carman, Willis) |
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order
Order Dismissing Parties
Thu 02/20 1:56 PM
ORDER DISMISSING PARTIES: Defendants Town of Babylon and West Gilgo Beach Association, Inc. are dismissed from this case pursuant to the parties' stipulation of partial dismissal. See ECF No.21 . Ordered by Judge Hector Gonzalez on 2/20/2025. (PN) |
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| Wednesday, February 19, 2025 | ||
| 25 | 25
misc
Letter
Wed 02/19 11:23 AM
Letter Requesting an Extension of Time for Defendant to Respond to Summons and Complaint by Irene Shepard, Thomas Shepard (Baron, Peter) |
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order
Order(Other)
Wed 02/19 2:10 PM
ORDER: The Court is in receipt of Plaintiff's response to the Court's Order to Show Cause. See ECF No.23 . As an initial matter, the Court admonishes Plaintiff's counsel for responding to the Order with a response that is clearly cut-and-pasted from prior responses to Orders to Show Cause that this Court has issued in other similar cases. See Wells Fargo Bank v. Howell , No. 24-cv-06097 (E.D.N.Y.), ECF No. 9; Deutsche Bank National Trust Company v. Delacerna , No. 24-v-6370, ECF No. 10; Deutsche Bank National Trust Company v. Delacerna v. Rivera , No. 24-cv-7721, ECF No. 8. Plaintiff's counsel's conduct is especially egregious because this Court informed counsel in each of those other cases, that this recycled response is insufficient as the Plaintiff's discussion of standing is irrelevant to the Order to Show Cause because the Order did not raise the issue of standing (and had it, it would have been an issue of Article III standing, not contractual standing under state law, see New Falls Corp. v. Soni , No. 16-cv-06805, 2024 WL 1241982, at *3 (E.D.N.Y. Mar. 22, 2024) (explaining the distinction)). The Court should not have to sift through hundreds of pages of documents to find an answer to its own order. Should Plaintiff's counsel file such a response in this or any other case again, counsel will be sanctioned. Once again, having reviewed the trust agreement, the Court finds that Section 2.01 describes the conveyance of the at-issue mortgage found by other courts to establish the required level of control to make the trustee the real party in interest for diversity purposes. See Wilmington Sav. Fund Soc'y, FSB as trustee for Pretium Mortg. Acquisition Tr. v. Okunola , No. 18-cv-2084, 2023 WL 9507759, at *2 (E.D.N.Y. Mar. 15, 2023). Based on the allegations in the Complaint, the Court concludes that Plaintiff has adequately alleged the existence of diversity jurisdiction. Ordered by Judge Hector Gonzalez on 2/19/2025. (KM) |
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order
Status Report Order
Wed 02/19 2:12 PM
ORDER: The Court has received Plaintiff's letter, see ECF No.17 , in which Plaintiff indicates that it wishes to voluntarily dismiss Defendant West Gilgo Beach Association, Inc. and Defendant Town of Babylon because "it has been determined that [these Defendants'] interest[s] in the property survive the foreclosure sale and therefore, they are not necessary defendants to this action," see id. at 1. The Court has also received those parties' stipulation of partial dismissal. See ECF No.21 . The Court has further received Defendant Town of Babylon's premotion letter, see ECF No.20 , as well as its letter withdrawing its premotion letter, see ECF No.22 , which was filed after the stipulation of partial dismissal was filed. Willis B. Carman has signed the stipulation of partial dismissal on behalf of Defendant West Gilgo Beach Association. Inc., see ECF No.21 , but Mr. Carman has not entered a notice of appearance in this case. The Court cannot accept the stipulation of dismissal unless Mr. Carman enters a notice of appearance on behalf of Defendant West Gilgo Beach Association. Inc. Mr. Carman shall do so by February 21, 2025. Ordered by Judge Hector Gonzalez on 2/19/2025. (KM) |
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order
Order(Other)
Wed 02/19 2:12 PM
ORDER STRIKING18 Letter. Plaintiff appears to have filed a letter on this docket that does not pertain to this case. Accordingly, the letter is stricken. Ordered by Judge Hector Gonzalez on 2/19/2025. (KM) |
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order
Status Report Order
Wed 02/19 2:15 PM
ORDER: The Court grants in part and denies in part the motion for an extension of time filed by Defendants Thomas and Irene Shepard, see ECF No.25 . The Court directs the parties to meet and confer regarding the proposal provided in Defendants' letter, and provide the Court with an update on or before February 26, 2025, regarding whether the modification proposal is likely to resolve this matter. If the parties have not agreed to the proposal by that date, Defendants may renew their motion for an extension of time on that date. Ordered by Judge Hector Gonzalez on 2/19/2025. (KM) |
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| Tuesday, February 18, 2025 | ||
| 24 | 24
notice
Notice of Appearance
Tue 02/18 7:06 PM
NOTICE of Appearance by Sean Howland on behalf of Deutsche Bank National Trust Company (aty to be noticed) (Howland, Sean) |
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| 23 | 23
misc
Letter
Tue 02/18 6:58 PM
Letter in Opposition to OTSC by Deutsche Bank National Trust Company (Howland, Sean) |
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Att: 1
Exhibit A - Pooling and Servicing Agreement
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| 22 | 22
misc
Letter
Tue 02/18 2:35 PM
Letter by Town of Babylon (Fink, Steven) |
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| 21 | 21
misc
Stipulation of Dismissal
Tue 02/18 2:15 PM
STIPULATION of Dismissal Partial Dismissal (TOB & WGBA) by Town of Babylon (Fink, Steven) |
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| Monday, February 17, 2025 | ||
| 20 | 20
misc
Letter
Mon 02/17 5:57 PM
Letter Pre-Motion Letter by Town of Babylon (Fink, Steven) |
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| Friday, February 14, 2025 | ||
| 19 | 19
notice
Notice of Appearance
Fri 02/14 2:21 PM
NOTICE of Appearance by Christina Rose Bruderman on behalf of Deutsche Bank National Trust Company (aty to be noticed) (Bruderman, Christina) |
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| 18 | 18
misc
Letter
Fri 02/14 2:10 PM
Letter Status Letter by Deutsche Bank National Trust Company (Avraham, Orit) |
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Att: 1
Affidavit of Service Affirmation of mailing
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| 17 | 17
misc
Letter
Fri 02/14 2:04 PM
Letter Status Letter by Deutsche Bank National Trust Company (Bruderman, Christina) |
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Att: 1
Affidavit of Service Affirmation of mailing
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| Tuesday, February 11, 2025 | ||
| 16 | 16
notice
Notice of Appearance
Tue 02/11 1:54 PM
NOTICE of Appearance by Peter D. Baron on behalf of Thomas Shepard, Irene Shepard (aty to be noticed) (Baron, Peter) |
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| Monday, February 10, 2025 | ||
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misc
Consent to Jurisdiction by US Magistrate Judge - Declined
Mon 02/10 10:29 AM
NOTICE to Assign District Judge: The Clerk of Court is directed to reassign this case to a district judge. (DM) |
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utility
Case Assigned/Reassigned
Mon 02/10 11:18 AM
Case Reassigned to Judge Hector Gonzalez. Please download and review the Individual Practices of the assigned Judges, located on our[LINK:website] . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (LJ) |
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order
Order on Motion to Dismiss for Failure to State a Claim Order to Show Cause
Mon 02/10 6:06 PM
ORDER TO SHOW CAUSE: This case has been reassigned to Judge Hector Gonzalez. In light of Defendant Town of Babylon's letter indicating it seeks to file a motion to dismiss, Defendant shall file a premotion conference letter in accordance with the Court's Individual Practices on or before February 18, 2025 . Plaintiff shall file a responsive letter in accordance with the Court's Individual Practices on or before February 25, 2025 . Plaintiff's letter shall also address whether Plaintiff believes the complaint can be amended to address the issues raised in Defendant's letter. Additionally, unlike state courts, which typically and routinely hear local foreclosure actions, federal courts are "courts of limited jurisdiction" and are generally authorized only to hear cases arising under federal question or diversity jurisdiction. Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 375 (1978). Without subject-matter jurisdiction, "[f]ederal courts may not proceed at all in any cause." Vera v. Republic of Cuba , 867 F.3d 310, 315-16 (2d Cir. 2017). "It is axiomatic that, for diversity jurisdiction to be available, all of the adverse parties in a suit must be completely diverse with regard to citizenship." E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co. , 160 F.3d 925, 930 (2d Cir. 1998). "[P]laintiff[] bear[s] the burden of making a preponderance showing, inter alia, of complete diversity...." See Raymond Loubier Irrevocable Tr. v. Loubier , 858 F.3d 719, 725 (2d Cir. 2017) (quotation omitted). Here, Plaintiff, alleges that it is a citizen of California for diversity jurisdiction purposes. ECF No.1 at para.2 . However, Plaintiff is a trustee, and its own citizenship does not necessarily control. See Wilmington Fund Soc'y, FSB v. Okunola , No. 18-cv-4084, 2023 WL 9507759, at *2 (E.D.N.Y. Mar. 15, 2023). To be sure, "a trustee's citizenship controls only if the trustee 'possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others,' because that authority is what makes the trustee 'a real party to the controversy.'" Id. at *2 (quoting Navarro Savings Ass'n v. Lee , 446 U.S. 458, 464 (1980)). But where "sufficient control" is lacking, the Court must look to the citizenship of the trust's beneficiary as the real party in interest. See id. ; see also U.S. Bank Nat'l Ass'n v. Desrosiers , No. 17-cv-7338, 2021 WL 5630899, at *3 (E.D.N.Y. Dec. 1, 2021). In this case, Plaintiff asserts that it is "the owner and holder of [the] Note and Mortgage or has been delegated the authority to institute a mortgage foreclosure by the owner and holder." ECF No.1 at para. 19 . As this Court has informed Plaintiff's counsel in other similar cases, that vague allegation is insufficient to determine adequate control. See Deutsche Bank Nat'l Tr. Co., v. Rivera , No. 24-cv-07721, Nov. 5, 2024, Order to Show Cause; Deutsche Bank Nat'l Tr. Co., v. Delacerna , No. 24-cv-6370, Sept. 11, 2024, Order to Show Cause; Wells Fargo Bank v. Howell , No. 24-cv-6097, Sept. 11, 2024, Order to Show Cause. Regardless, "proper jurisdictional analysis begins by examining the scope of the trustee's authority as delineated by the Trust Agreement." See Okunola , 2023 WL 9507759, at *3. But here, that agreement is not before the Court, and so Plaintiff has failed to invoke this Court's diversity jurisdiction. See id. (explaining that "courts uniformly dismiss cases for lack of subject matter jurisdiction when they cannot conduct... analysis" of the trust agreement). Therefore, on or before February 18, 2025 , Plaintiff is ORDERED TO SHOW CAUSE why this case should not be dismissed without prejudice for lack of subject-matter jurisdiction. See id. at *4 (dismissing case on this basis); Desrosiers , 2021 WL 5630899, at *5 (same). If Plaintiff contends that diversity jurisdiction is proper based on its own citizenship as trustee, it is directed to file the relevant trust agreement as well as a letter, not to exceed five pages, explaining how the provisions of the trust agreement evidence the requisite level of control described in Okunola and the cases cited therein. On the other hand, if Plaintiff asserts that diversity jurisdiction is proper based on the citizenship of its beneficiary, it must correctly disclose the citizenship of the trust beneficiary. Ordered by Judge Hector Gonzalez on 2/10/2025. (KM) |
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| Saturday, February 08, 2025 | ||
| 15 | 15
motion
Dismiss for Failure to State a Claim
Sat 02/08 10:48 AM
MOTION to Dismiss for Failure to State a Claim by Town of Babylon. (Fink, Steven) |
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| 14 | 14
notice
Notice of Appearance
Sat 02/08 10:45 AM
NOTICE of Appearance by Steven Matthew Fink on behalf of Town of Babylon (aty to be noticed) (Fink, Steven) |
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| Tuesday, February 04, 2025 | ||
| 13 | 13
service
Summons Returned Executed
Tue 02/04 9:21 AM
SUMMONS Returned Executed by Deutsche Bank National Trust Company. West Gilgo Beach Association, Inc. served on 1/30/2025, answer due 2/20/2025. (Boriskin, Sara) |
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| 12 | 12
service
Summons Returned Executed
Tue 02/04 9:17 AM
SUMMONS Returned Executed by Deutsche Bank National Trust Company. Irene Shepard served on 1/30/2025, answer due 2/20/2025. (Boriskin, Sara) |
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Att: 1
AFF MAILING
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| 11 | 11
service
Summons Returned Executed
Tue 02/04 9:16 AM
SUMMONS Returned Executed by Deutsche Bank National Trust Company. Thomas Shepard served on 1/30/2025, answer due 2/20/2025. (Boriskin, Sara) |
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| Friday, January 31, 2025 | ||
| 10 | 10
service
Summons Returned Executed
Fri 01/31 11:06 AM
SUMMONS Returned Executed by Deutsche Bank National Trust Company. The Bank of New York Mellon served on 1/27/2025, answer due 2/17/2025. (Boriskin, Sara) |
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| 9 | 9
service
Summons Returned Executed
Fri 01/31 11:04 AM
SUMMONS Returned Executed by Deutsche Bank National Trust Company. Town of Babylon served on 1/23/2025, answer due 2/13/2025. (Boriskin, Sara) |
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| Tuesday, January 21, 2025 | ||
| 8 | 8
order
Scheduling Order
Tue 01/21 1:33 PM
ORDER: An IN-PERSON Initial Conference is set for 5/20/2025 at 10:30 AM in Courtroom 840 before Magistrate Judge Anne Y. Shields. See order and attachment. Ordered by Magistrate Judge Anne Y. Shields on 1/21/2025. (JT) |
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Att: 1
AYS RULES
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| Wednesday, January 15, 2025 | ||
| 7 | 7
service
Summons Issued
Wed 01/15 8:49 AM
Summons Issued as to Irene Shepard, Thomas Shepard, The Bank of New York Mellon, Town of Babylon, West Gilgo Beach Association, Inc. (LJ) |
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| 6 | 6
notice
Notice of Opportunity to Consent
Wed 01/15 8:41 AM
Clerks Notice Re: Consent. A magistrate judge has been assigned as the presiding judge in this case as part of a Pilot Program, governed by EDNY Administrative Order 2023-23. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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 is also available here:[LINK:https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program.] Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. Unless all parties consent to the Magistrate Judge jurisdiction by the deadline set forth in the Administrative Order 2023-23, a District Judge will be assigned to the case. The parties are directed to review the terms of Administrative Order 2023-23 and other materials related to the Pilot Program on the Courts website:[LINK:https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program.] (LJ) |
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| 5 | 5
misc
Quality Control Check - Attorney Case Opening
Wed 01/15 8:38 AM
This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
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utility
Case Assigned/Reassigned
Wed 01/15 8:40 AM
Case Assigned to Magistrate Judge Anne Y. Shields. Please download and review the Individual Practices of the assigned Judges, located on our[LINK:website] . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (LJ) |
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| Tuesday, January 14, 2025 | ||
| 4 | 4
notice
Notice of Appearance
Tue 01/14 4:37 PM
NOTICE of Appearance by Sara Zahava Boriskin on behalf of Deutsche Bank National Trust Company (aty to be noticed) (Boriskin, Sara) |
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| 3 | 3
misc
Proposed Summons/Civil Cover Sheet
Tue 01/14 4:35 PM
Proposed Summons. by Deutsche Bank National Trust Company (Cellucci, Anthony) |
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| 2 | 2
misc
Proposed Summons/Civil Cover Sheet
Tue 01/14 4:35 PM
Civil Cover Sheet.. by Deutsche Bank National Trust Company (Cellucci, Anthony) |
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| 1 | 1
13
pgs
cmp
Complaint
Tue 01/14 4:34 PM
COMPLAINT against John Doe #1 through John Doe #12, Irene Shepard, Thomas Z Shepard, The Bank of New York Mellon fka The Bank of New York, Town of Babylon, West Gilgo Beach Association, Inc. filing fee $ 405, receipt number ANYEDC-18664071, filed by Deutsche Bank National Trust Company. (Cellucci, Anthony) |
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Att: 1
Exhibit Exhibit A,
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Att: 2
Exhibit Exhibit B,
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Att: 3
Exhibit Exhibit C,
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Att: 4
Exhibit Exhibit D,
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Att: 5
Exhibit Exhibit E,
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Att: 6
Exhibit Exhibit F,
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Att: 7
Exhibit Exhibit G,
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Att: 8
Exhibit Exhibit H,
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Att: 9
Exhibit Exhibit I
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