Opinion
Index No. CV-013949-20/BX
09-02-2022
Parkchester Preservation Co., LP, Plaintiff, v. Durey Housen and Sharme Cagle, Defendants.
For Plaintiff: Robert E. Judge, PC (by Robert E. Judge, Esq.) Defendant Housen proceeded pro se. Defendant Cagle did not appear.
Unpublished Opinion
For Plaintiff: Robert E. Judge, PC (by Robert E. Judge, Esq.)
Defendant Housen proceeded pro se. Defendant Cagle did not appear.
Verena C. Powell, J.
INTRODUCTION
Parkchester Preservation Company, LP ("Parkchester" or "Plaintiff") commenced this non-payment action on November 17, 2020, seeking $19,608.93 from Defendants Durey Housen ("Housen") and Sharme Cagle ("Cagle") for arrears in use and occupancy, from August 2018 to August 2019.
On or about December 17, 2020, the Defendants filed an answer. The answer asserted defenses of not owing the debt, claim that the debt had been discharged, that the matter was a tax matter and the debt canceled, and that the Defendants' income was exempt from collection. The answer included a counterclaim for $500,000,000 per use of the "assume name fee schedule."
Following several conferences and adjournments, this action proceeded to a bench trial. Parkchester's management agent testified at the trial, as did Defendant Housen. Both witnesses submitted documentary evidence for the Court's consideration. After the trial, the Court reserved decision.
FINDING OF FACTS
The credible and relevant evidence at the trial showed the following:
Hedy L. Bucala ("Bucala"), the managing agent for Parkchester Preservation, testified that Plaintiff and the Defendants entered a lease agreement on November 1, 2015, for a two (2) year term commencing on November 1, 2015, and terminating on November 30, 2017. The agreed monthly rent for 24 Metropolitan Oval, Unit 6B, Bronx, New York 10462 was 41,665.00. Ms. Bucala introduced the multi-paged lease with riders, signed by Defendants and Carlos Ortiz, Parkchester's Director of Leasing and Marketing, into the record.
After their lease expired, the Defendants remained in possession of the apartment without signing a lease renewal. Ms. Bucala testified that Parkchester sent a letter to the Defendants concerning a lease renewal, but the Defendants never signed a new lease. She said that the Defendants stayed in the apartment and paid use and occupancy until August 2018. Thereafter, the Defendants failed to pay for the use and occupancy of the apartment. The Plaintiff seeking possession of the apartment filed a matter in Bronx Housing Court. Judge Ibrahim Shorab issued a judgment of possession in favor of Parkchester on March 1, 2019 and issued warrants of eviction against the Defendants. On or about July 17, 2019, a New York City Marshall took possession of the premises pursuant to the eviction order. Ms. Bucala testified that at the time of the eviction, $19,608.93 of arrears remained.
Plaintiff admitted the following exhibits:
Court acknowledges that Plaintiff's exhibits should be numbered and Defendants' exhibits lettered.
Plaintiff's Exhibit A: Residential Lease Agreement with Riders.
Plaintiff's Exhibit B: Tenant History Statement detailing the amount of rent and other charges still owed as $19,608.93.
Plaintiff's Exhibit C: Decision and Order for Bronx Housing Court, LT-054686-18 BX.
Plaintiff's Exhibit D: Marshall Notice of Possession, July 17, 2019.
Defendant Housen testified on behalf of the Defendants. Housen claimed there were no outstanding arrears for use and occupancy as the debt had been satisfied. Mr. Housen testified that he tendered payment for the entire balance with a "Bonded Bill of Exchange" ("Bill"). Housen said attached to the Bill were instructions on processing it with the United States Treasury Department. Housen provided the Court with copies of documents showing that a trust he established, "Durey Damion Housen Trust," had completed a UCC Financing Statement, Addendum, and Amendment.
Housen's UCC Financing Statement, Section 4 "Collateral: This financing statement covers the following collateral," states in part:
This is the entry of collateral by Trustee/Secured Party on behalf Of the Trust/Estate: DUREY DAMION HOUSEN TRUST in the Commercial Chamber under necessary to secure the rights, title(s), Interest and value therefrom, in and of the Roof of Title from inception, as well as all property held in trust including but not limited to DNA, cDNA, cell lines, retina scans, fingerprints and all Debentures, Indentures, Accounts, and all the Pledges represented by same included but not limited to the pignus, hypotheca, hereditaments, res, the energy and all products derived therefrom nunc pro tunc, contracts, agreements, and signatures and/or endorsements, facsimiles, printed, typed or photocopied of owner's name predicated on the 'Straw-man,'...
Defendant Housen admitted the following exhibits:
Defendant's Exhibit 1: UCC Financing Statement re Bonded Bill of Exchange
Defendant's Exhibit 2: Letter dated June 2019
Defendant's Exhibit 3: Certified letter to Robert Judge, Esq., Plaintiff's counsel.
Defendant's Exhibit 4: Internal Revenue Forms 1099-OID, 1099A, 1099 C
Defendant's Exhibit 5: 18 U.S.C. 8, 15 U.S.C. 1692e, 31 U.S.C. Chap. 9 Legal Tender.
DISCUSSION
The Court has considered all the evidence and finds that the claim as it relates to the Defendants is proper because it is based on a breach of contract (the residential lease). The parties admit there had been a lease agreement and that the Defendants did not sign a lease renewal upon the expiration of the original lease. Both parties also agree that the Defendants maintained occupancy of the apartment until June 2019.
The Court finds that it will not offset the Defendants' rent arrears obligation by the Bill he created and proffered to Parkchester for payment. Contrary to Defendant Housen's contention, the Bill is not a negotiable instrument. The cited language from Housen's UCC financing document "consists of nothing more than a string of words that sound as though they belong in a legal document, but which, in reality, are incomprehensible, signifying nothing ." In re Marriage of David J., Dkt. No. F051779, 2008 Cal.App. Unpub. LEXIS 5992, *3 (Cal.Ct.App., 5th Dist. Jul. 25, 2008), citing McElroy v. Chase Manhattan Mortgage Corp., 134 Cal App. 4th 388, 393 (Cal.Ct.App., 5th Dist. 2005). The credible evidence shows that the Defendants owe $19,608.93 in arrears from September 2018 through August 2019.
McElroy discusses the genesis of bonded bills of exchange in depth. The type of bonded bill of exchange submitted in this action has also been recognized as "bogus and incomprehensible" by the Treasury Department, and an adaptation of a 'sight draft' fraud that was the subject to a suspicious transaction alert by the Comptroller of the Currency over twenty years ago. U.S. Treas. Dept., TreasuryDirect: Bogus Sight Drafts/Bills of Exchange Drawn on the Treasury, https://www.treasurydirect.gov/instit/statreg/fraud/fraud_bogussightdraft.htm (last accessed Sept. 2, 2022). Beyond California, the Court's LexisNexis search revealed state and federal cases from six other states (Delaware, Georgia, Illinois, Ohio, Michigan, and Texas), all of which rejected the use of bonded bills of exchange in the same or similar manner urged here. Nothing in the record dissuades the Court from deviating from the decisions of McElroy and its sister courts' holdings in this action.
DECISION
After hearing the testimony at trial, giving appropriate weight to the testimony of the Plaintiff and the Defendant, reviewing the Summons and Complaint, the Answer, and reviewing the documentary evidence produced at the trial, it hereby
ORDERED that Defendants, jointly and severally, owe the sum of $19,608.93 to Plaintiff through August 31, 2019, and it is further
ORDERED that judgment shall issue for Plaintiff against Defendants, jointly and severally, in the amount of $19,608.93.
The foregoing constitutes the Decision and Order of this Court.