MASSIVE PONZI SCHEMER BEGS COURT TO HALT SALE OF HIS APARTMENT BUILDING

As first reported here on FAA News a series of unfortunately wrong business moves by a Lakewood based company has led to a massive ponzi scheme affecting numerous Lakewood area residents, as well as investors from across New York, New Jersey, and Ohio.

As previously reported here on FAA News, this ponzi scheme continues to unfold, as at the very same time that the Lakewood company notified Iowa State officials that they could no longer afford the nursing homes they purchased 2 months prior, they also stopped paying the monthly mortgage for an apartment building they purchased for $9 million just several months prior.

The apartment building property is already under a foreclosure proceeding. The bank recently filed legal action in court seeking emergent relief for a Receiver to be appointed to manage the current tenants and also to sell the property.

The owners of the apartment building are now begging the court to halt these efforts.

According to the lawsuit filed in New Jersey Superior Court, Chancery Division in Camden County:

The Lakewood based company, under the names Cornell Manor LLC, Five Star Store It Mason LLC, Five Star It Ohio I LLC, purchased an 82 unit multi-family apartment complex in Stratford Borough known as the Cornell Manor Apartments.

The property owners took out a $9,183,000 mortgage for their purchase of the property on July 18, 2022. Greystone Servicing Company LLC was the original lender for this mortgage.

The Mortgage Note provides that the property owners are to pay interest only payments in monthly installments beginning on September 1, 2022 and continuing every month 24 months until August 1, 2024 when the balance of principal and interest would be due and payable.

The Mortgage Note provides for interest at a variable rate based on 30-day SOFR, plus a margin of 4.75% (the “Variable Interest Rate”), at an initial rate of 6.11438% per annum, subject to adjustment on a monthly basis commencing on October 1, 2022 pursuant to the terms of the Mortgage Note.

The Mortgage includes a security agreement in the form of collateral creating a security interest to the lender in, among other things and without limitation, all fixtures, fittings, appliances, apparatus, equipment, machinery, furnishings, furniture, carpets, chattels and articles of personal property of every kind and nature whatsoever then owned or later acquired by defendant Mortgagors, as well as all proceeds and products of the same.

On or about July 18, 2022, the original lender transferred the mortgage holding rights to NWL Company, LLC.

The trouble began when the property owners failed to make the full monthly installment payments due as of January 1, 2023. No payment was made in February either, or in any month since then.

Pursuant to the terms of the Mortgage Note, if the property owners do not pay the full amount of each payment on the date it is due, they will be in default. If they continue to be in default, the entire unpaid principal amount of the Loan, any accrued interest, any Prepayment Charge, and all other amounts payable under the Mortgage Note and any other Loan Document will become due and payable, at the option of Plaintiff, without the need for any prior notice.

As still no mortgage payment has been submitted, the mortgage company, represented by Newark Attorney Matthew J. Schiller, Esq., has filed legal action to foreclose on the property.

The foreclosure lawsuit seeks for the Court to fix the amount due pursuant to the Mortgage Note and Mortgage (i.e. the mortgage holder is seeking for the Court to calculate the appropriate interest amount due), as well as judgement barring and foreclosing the defendants from all equity of redemption in and to the Mortgaged Property, and judgement that the Mortgaged Property be sold according to law to satisfy the amounts due to Plaintiff.

Pursuant to the terms of the Mortgage, the mortgage company reserves the right to pay taxes, insurance premiums, maintenance and security costs, the costs of repairs, water charges, sewer charges, attorneys’ fees, as necessary to secure the property, with the right that such amount be added to the claim and be repaid from the proceeds of the sale of the Mortgaged Property.

The lawsuit seeks for judgment directing that the mortgage company be repaid for these expenses as well.

In addition to seeking for a sale of the property, the mortgage holder is also seeking for the collateral located on the property sold by the sheriff together with the property at a single public sale.

Finally, the lawsuit seeks judgement appointing a receiver of the rent, income and profits of the property.

The Mortgage provides that Plaintiff, upon default by the defendant Mortgagors, shall be entitled to apply for the appointment of a receiver without regard to the adequacy of security for the sums due or to become due under the Mortgage Note and Mortgage and that Mortgagors’ consent to the appointment of such receiver shall be deemed granted during the occurrence and continuation of any event of default.

Plaintiff is also entitled to collect the rent, income and profits of the Mortgaged Property by virtue of the Assignment of Rents.

Writing that "the appointment of a rent receiver is necessary to protect and preserve the value of Plaintiff’s security," Plaintiff demands judgment against the defendants appointing a receiver of the rent, income and profits of the property; directing all tenants to pay the receiver all rent, income and profits; directing defendants, their agents and employees, or any other party in possession of the property to immediately turn over to the receiver (i) all of the monies now on deposit with them as rent security for the property, (ii) any monies now on deposit in any operating accounts for the property, (iii) all papers, documents and other things affecting the rental and operation of the property that they may have in their possession; authorizing the receiver to, among other things, rent or lease any party of the property for a term not exceeding one year (unless otherwise authorized by the Court); keep the property insured against loss or damage; pay taxes, municipal assessments, and water and sewer charges due on the property; file a tax appeal for the property; market the property for sale; and otherwise do all things necessary for the due care and proper management of the property.

The lawsuit also seeks for costs of suit and attorneys’ fees; and such other relief as is equitable and just.

After the property owners failed to answer the foreclosure complaint, as previously reported here on FAA News, back in July, the bank asked the court to enter judgement against them in default.

Additionally, the bank filed a Motion to appoint a Receiver to collect the rent, pay the immediate bills, and to maintain the property. Additionally, the bank is seeking for the Receiver to be permitted to sell the property.

"Despite our filing this foreclosure lawsuit, the Lakewood company has failed to make second quarter 2023 tax payments due to the Borough. On or about May 10, 2023, we remitted the second quarter tax payment to the Borough in the amount of $22,712.62 in order to keep taxes current. Because the balance in the Borrowers’ reserve account was $9,820.62, we were required to advance the remaining balance of $12,892.00 to pay the entire balance due," Attorney Matthew J. Schiller, Esq. wrote to the Court.

"Moreover, on or about May 17, 2023, the Borough issued multiple citations with respect to the Property for overgrown grass and for having debris spread throughout the yard in violation of the Borough’s code requirements," Mr. Schiller added.

As of July 19, 2023, the current principal balance due is $9,183,000. Late fees to date is $7,111.88. Interest is $554,929.06. Default interest is $203,046.32, and there is a negative tax balance in the amount of $12,892. The bank is also seeking their costs and expenses, including legal fees and costs to pursue this foreclosure matter.

In their motion filing, they cite the Appellate Division ruling in Barclays Bank P.L.C. v. Davidson Ave. Assocs. Ltd. which found that "a receiver should be appointed when it appears necessary to protect the mortgagee’s security.”

The bank has named Ian V. Lagowitz as their proposed rent receiver. Mr. Lagowitz is a Managing Partner of the property management firm of Trigild IVL, LLC, an experienced property manager both in New Jersey and throughout the country.

The bank is requesting for the Receiver to manage and operate the building, collect rent, maintain the premises, and all other things necessary for the due care and management of the property.

The Receiver is to use the rent for his salary and to use any remaining funds to pay the interest on the mortgage.

Accordingly, the landlord and property manager are to be required to hand over all keys to the property to the Receiver. They are to be further enjoined from collecting or accepting any rent from the tenants.

The property owners have now retained New York Attorney David J. Goldsmith Esq. of Schlam Stone and Dolan LLP to seek to stop the appointment of a receiver.

Mr. Goldsmith answered the foreclosure complaint, admitting that the property owners "did not pay all amounts requested in connection with the Loan Documents."

However, Mr. Goldsmith is also begging the court to halt the appointment of a Receiver, asserting that "at no time since this foreclosure lawsuit was filed has any rental income been misappropriated in any way unrelated to the Mortgaged Premises. Nor will the property owner make any such payments while this action remains pending."

"All rents collected from tenants are used to pay the operating expenses for the property including the cleaning, maintenance expenses, management of the building, permitting, licensing and inspection costs, repairs, utilities, insurance and payroll for the building’s staff. There are no utility, water or sewer charges that are past due. There are no property taxes on the property which are due.

"Based on the rents collected and operating expenses for the Mortgaged Property, the
amount currently in the operating account, together with future rents collected, will continue to be sufficient to pay the operating expenses of the Mortgaged Premises, including property taxes - outside of mortgage payments."

Somehow, the mortgage simply can't be paid.

However, Mr. Goldsmith, argued that the mortgage language simply does not warrant a receivership, "The contractual language on which Plaintiff relies is not controlling. To the contrary, a contractual provision by which the borrower consents to the appointment of a receiver upon default is not enforceable as written, but simply provides one factor for courts to consider when determining motions for the appointment of a receiver."

Judge Sherri L. Schweitzer is scheduled to hear oral arguments on the matter next Friday, September 8, 2023.

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