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United States ex rel. Boykin v. Morgan Stanley Capital Holdings LLC

United States District Court, D. New Jersey

February 1, 2018

United States of America ex rel. VERA BOYKIN, Plaintiff,
v.
MORGAN STANLEY CAPITAL HOLDINGS LLC, VINCENT G. RICIGLIAN, FV-1, INC. IN TRUST FOR MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, KML LAW GROUP, P.C., STERN, LAVINTHAL & FRANKENBERG, LLC, SEAN ADAMS, RICHARD ABEL, KRISTINA G. MURTHA, BERGEN COUNTY SHERIFF IN HIS INDIVIDUAL CAPACITY, Defendants.

          MEMORANDUM AND ORDER

          KEVIN MCNULTY, U.S.D.J.

         This matter comes before the Court on an "Emergent Motion For TRO/Stay Against the Execution of Writ of Possession." (ECF no. 2) The motion indicates that it was served by mail. A summons has issued, but there is no proof of service in accordance with Fed.R.Civ.P. 4. No defendant has appeared.

         The following facts are gleaned from the Verified Complaint and die state court papers attached to the complaint and motion. The action relates to a mortgaged property at 220 West Hudson Street, Englewood, New Jersey.

Preceding this action was a state court foreclosure action:
COUNTRYWIDE HOME LOANS SERVICING LP FOR THE BENEFIT OF HSBC BANK USA, N.A. BY ITS ASSIGNEE HSBC BANK USA, N.A., Plaintiff
v.
MIR A. KHAN; MRS. MIR A. KHAN, his wife; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC. AS NOMINEE FOR WMC MORTGAGE CORP. and VERA BOYKIN, TENANT

         (Super. Ct. N.J., Bergen County, Chancery Div., Docket No. F-3805-08). The plaintiff here, Ms. Boykin, is identified in the underlying foreclosure action as a tenant; the owner and mortgagor of the property are identified as Mr. and Mrs. Mir A. Khan.

         A final judgment of foreclosure was entered on June 9, 2015. On August 12, 2016, pursuant to a writ of execution, the property was sold at a sheriffs sale. The purchaser was FV-1, Inc. In Trust for Morgan Stanley Mortgage Capital Holdings LLC.

         On November 20, 2017, a writ of possession issued in favor of the new owner of the property, entitling it to gain possession from Ms. Boykin, the Khans, and others. The affidavit of service on Mr. Khan states that eviction is scheduled for March 5, 2018. No specific date is given for the eviction of Ms. Boykin.

         Ms. Boykin's complaint and motion attach copies of UCC Financing Statements that she has filed with the County Clerk. These purport to create a lien against the property in the amount of $100 million for a total in excess of $200 million. Ms. Boykin names herself as the "record owner" of the real estate and "secured party." She also seems to be asserting the rights of Mir A. Khan. Named in the filings as Ms. Boykin's "debtors" are HSBC Bank UA, N.A.; BAC Home Loans Servicing, LP; Mortage Electronic Registration Systems Inc.; WMC Mortgage Corporation; Toby Wells; Ronald Rooney; Keller Williams Realty, Inc.; Armen Azarnia; Computer share Limited; and Specialized Asset Management LLC.

         The fourfold standard for injunctive relief requires the plaintiff to demonstrate

[1] that [s]he is likely to succeed on the merits,
[2] that [s]he is likely to suffer irreparable harm in the absence of ...

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