----------------------------------------------X

HSBC BANK, USA, NATIONAL

ASSOCIATION, AS TRUSTEE FOR
HOME EQUITY LOAN TRUST
SERIES ACE 2006-HEI SUPERIOR COURT OF NEW
JERSEY, MONMOUTH COUNTY
CHANCERY DIVISION

Plaintiff,

v. DOCKET NO. F-30194-08

JACQUELINE KUSHNER,
LARRY KUSHNER, ET AL.

Defendants
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MEMORANDUM OF LAW
IN SUPPORT OF ORDER TO
SHOW CAUSE WITH RESTRAINTS

LARRY & JACQUELINE KUSHNER

DEFENDANTS PRO-SE
731 GREENS AVE
LONG BRANCH, NJ 07740
(732) 670-6703
 FACTS

Defendant Jacqueline Kushner own their residence at 731 Greens Ave,

Long Branch, NJ. Plaintiff claims that they hold the mortgage on said residence,

by virtue of an assignment of the mortgage and note from “MERS” which

assignment was executed by a partner in the Plaintiffs law firm, and that the

defendants are in default on said mortgage, and that they have a right to

accelerate and foreclose that debt.

The “debt” that this matter arises out of was a “refi” of the Defendants

home, on September 19, 2005, at which time a “Note” was executed by

Jacqueline Kushner in favor of FGC Commercial Mortgage Finance d/b/a

Fremont Mortgage and a mortgage was executed by Jacqueline and Larry

Kushner in favor of “MERS as nominee of the Lender... “

The motion was also opposed because the correct party in interest did not

serve a valid “Notice of Intent to Foreclose” under NJ Statutes (which is a

condition precedent to commencing this action), and since the Plaintiff does not

hold a legal and valid assignment of the mortgage. On a further substantive

basis, the defendants opposed Summary Judgment because the loan itself is

predatory and must be voided, reformed or adjusted. The original holder of the

note “Fremont” has been cited in several States and enjoined from doing

business because of its predatory lending practices and in fact that lender has

filed for protection under the United states Bankruptcy Code. That is one of the

issues raised herein. Since “Fremont” was in bankruptcy, they could not assign

the Note without Bankruptcy Court approval and the MERS (as nominee for
Fremont) could NOT assign the mortgage, since there “agency relationship”

terminated in the bankruptcy without Court approval..

PRIOR PROCEEDINGS

The Plaintiff commenced the instant action “to foreclose” under Docket

No. F- 30194-08 by service of a Summons and Complaint. Defendant

interposed an Answer containing Affirmative Defenses and Counterclaims.

Plaintiff made a Motion for Summary Judgment and to Strike the defendants

Answer. The defendant opposed that Motion and after oral argument the Court

granted to the Plaintiff Summary Judgment and an Order striking the defendants

answer. Your defendant moved to re argue or reconsider that decision and that

request was denied. The Plaintiff improperly offered into evidence at the

Summary judgment “oral argument” additional documents which had no legal

foundation and which could not have been admitted without a proper foundation

and authentication (attorney took papers from file which was hearsay at best and

offered verbal explanations when he was not a qualified witness). The Plaintiff

sought and obtained (over defendants objections) a Final Judgment of

foreclosure, on February 16, 2010, which Judgment is the basis of this

Application to relief from.

An application was made to the this Court, Justice Thomas Cavanaugh,

Jr, for a “stay pending appeal”, on July 6, 2010. Justice Cavanaugh granted a

Stay to 7/12/10 so that “a stay could be applied for and obtained” from the
Appellate Division, where the matter was pending”.

The Appellate Division denied the Stay and asked that a trancript be

furnished. That has been done. A copy will be furnished to this Court at the time

of Oral argument.

This Court ordered mediation in this matter. Prior to the mediation I was

assigned to a housing counselor, Ivy Jacobs. I was also assigned an attorney,

Mark Cherry, who I did not meet or was advised of until the date of the mediation.

At the mediation, Mr. Cherry proposed a “short pay-off” and the attorney for the

bank rejected that proposal. Mr. Cherry asked “WHO” the attorney was “talking

to” since NO BANK REPRESENTATIVE was present. He was advised, by

Plaintiffs counsel “it is the servicer ASC”. Mr. Cherry asked to speak with them

and did. Last week, I received a letter, a copy of which is attached as Exhibit “A”

to the certification in support of this motion, which shows the servicer is Litton

Loan Serving NOT ASC. Thus, the Plaintiff did not act in good faith in this

mediation, should be penalized as set forth below, but for the minimum a stay

should be granted and a new mediation ordered with a requirement that an

officer of the Plaintiff, not its servicer be present.

BASIS FOR STAY

Rule 2-9:5 (b) provides the basis for this court to grant a stay

pending appeal of while the matter is pending in the Appellate Division.

A “stay” is an extraordinary remedy and is only granted in circumstances

where the “equities” favor such a result. The general rule is that in Order to
Obtain a 'stay pending appeal” there must be irreparable injury if the Stay is not

granted and “a likelihood of success on the merits” or at least a legal basis for the

appeal which will be circumvented if the Stay is not granted.

In the instant case the irreparable injury question is “a no brainier”. The

defendants reside in these premises as their marital home with their 13 children.

A sale of that home, their principal residence would cause a hardship on

themselves and their children that could not be corrected when this appeal is

determined and won.

As to the likelihood of success on the merits, and a good faith legal

argument, I direct the court attention to the facts and legal arguments presented

in this brief.

RECENT CASE

In oral argument in opposition to the Motion for Summary

Judgment, I cited numerous cases from Ohio and other authorities. The court

indicated they would review them but they are not binding. Recently, a Justice of

Chancery Court, in Atlantic County, determined a case of similar if not identical

facts and DISMISSED the case (a result opposite to this decision). Although, it is

not an appellate case, it is at least “persuasive' authority and I ask this Court to

first review the 53 page decision of Hon. Justice Todd, JSC Ch. Div, Superior

Court Atlantic County, in Bank of New York v. Michael Raftogianis

(decidedJJune24, 2010 and published 7/6/10 Slip Op) wherein Justice Todd

reviewed the many of the issues pertaining to “MERS” assignments and the

failure of a Plaintiff to produce proof of “ownership” of the Note and DENIED that
plaintiff Summary and at trial DISMISSED action, a result opposite to the

decision in this matter. That decision cites may authorities outside the State Of

New Jersey, since there is No authority in New Jersey, cites relevant New Jersey

statutes and comes to a simple conclusion that without ownership of the note,

and proof of that ownership, on the date of the commencement of the action the

case MUST BE DISMISSED. I will not re-cite all those cases and statutory

authority but ask this Court to review that well reasoned opinion and the cases

and authorities contained therein.

Further, in connection with determining if a “stay” should be granted the

Court should consider if there are any Public Policy considerations. In the instant

case, other States has ruled assignments of this type “not valid and have denied

standing to these Plaintiffs, and to cases involving robo signers . In the instant

case the decision is opposite to the ruling of Judge Todd in Bank of New York v.

Raftogianis (cited above) Since public policy requires 'equal justice' and “due

process” it is a requirement that Laws be applied equally and fairly. Since the

“determinations” on similar facts in Atlantic County is different than the conclusion

reached in Monmouth County, it is in the interests of the Public Policy of New

Jersey to STAY enforcement of this judgment until the Appellate Courts make a

complete ruling and determine the applicable law in the State of New

Jersey uniformly applied.

In addition to the request for a Stay pending appeal, we ask for a stay

pending a mediation with a PROPER BANK REPRESENTATIVE IN

ATTENDANCE and that be granted in the interests of Justice.

 LEGAL ISSUES (based on FACTS) RAISED

In the Complaint filed in this matter in par. 2

the Plaintiff asserts: “On July 12, 2007, Mortgage Electronic Registration

Systems, Inc, as nominee for FGC Commercial Mortgage Finance d/b/a Fremont

Mortgage assigned the mortgage to HSBC Bank..... The assignment is in the

process of being recorded.”

Thus, in the Complaint the Plaintiff basis their entire “entitlement” to the

relief sought, and their basis for “standing” on an assignment of mortgage “in the

process of being recorded”. Thus, they had NO STANDING on the date the

action was commenced based upon their own admission in the Complaint.

Further they DO NOT attached the “assignment to be recorded” to their

complaint.

The plaintiff then made a Motion for summary judgment on December 3,

2008 returnable January 9, 2009. A review of that motion and Exhibits show:

1. Exhibit “A” is the purported “NOTE” (copy)that was in the

Plaintiffs possession at that time. It is stamped “original” but

it does NOT contain any endorsement or allowance or

negotiation of any kind. Thus, at the time of the filing of

this Motion and therefore clearly when the complaint was

filed the Plaintiff was not the holder of an assigned or

endorsed note. Thus, by their own admission they did not

 have standing to commence and prosecute this action. (see

Point I below).

2. Exhibit “C” is the purported “assignment” executed by

MERS. However a review of that assignment shows it is

executed by Rosemarie Diamond who is a partner in

Phelon, the Plaintiff's law firm. Clearly, that doesn't meet the

“smell test” in that a partner in the Plaintiff's law firm

(representing alleged assignees in this matter) is executing

documents on behalf of the assignor! (This issue about

“robo signers' has become major news, with Bank of

America and GMAC suspending foreclosures. It is worse in

this case since the 'robo signer' is an officer of the

Court and a partner in the law firm prosecuting this

foreclosure). Beside not being 'kosher or above board”

these documents were first produced in connection with the

Motion for Summary Judgment and should not have been

considered.

Upon receipt, of our opposition to the Summary Judgment Motion the

Plaintiff upon Oral argument produced an alleged “Agreement for signing

authority” between MERS, Wells Fargo bank and Plaintiff's law firm Phelan

Hallinan and Schmeig”. That agreement was considered and reviewed by the

Court in error, since it was not a part of the pleading or motion and should not

have been considered as evidence since it was without foundation or

authentication. It was at best “hearsay' and should not have been considered.

Further, since the lender was not a party to that agreement there would be NO

BASIS for anyone to authorize any assignment of their mortgage. Otherwise

stated, the mortgage is in the name of MERS as nominee of FGC. No one could

authorize anyone to assign it except the principal to wit: FGC. FGC as an agent

of Fremont Mortgage could also not assign it because Fremont was in

bankruptcy and that would take a Court order of the United States Bankruptcy

Court.

POINT I

PLAINTIFF FAILED TO PARTICIPATE IN

THE MEDIATION IN 'GOOD FAITH”

As stated above, a mediation was held on October 5, 2010. Defendant

appeared and was represented by Counsel, Mark Cherry. The plaintiff's counsel

appeared and said NO to a short “pay off” at the amount “that they would have

stopped bidding at, at the scheduled sheriff's sale- for no reason”. Mr. Cherry,

“pressed” who was 'rejecting this” and was advised “the servicer ASC”. It was

not the Plaintiff. Attached as Exhibit A to the certification in support of this

motion, is a letter dated October 4, 2010 (one day before the mediation) that

shows Litton Loan Servicing to be the servicer of this loan.

Thus at the least the plaintiff made a mistake at the mediation and the

sheriffs sale should be stayed and a new mediation ordered. they

 Alternatively, since I believe that these actions by the Plaintiff show a

pattern of bad faith (see the history of this proceeding and the prior one), I

respectfully ask the Court to dismiss this action with prejudice. That basis for this

drastic relief is Indy Mac v. Yano-Horoski, 11/19/2009, Supreme Court of New

York, Suffolk County, Justice Jeffrey A. Spinner, wherein Justice Spinner

dismissed a complaint and canceled a mortgage where the Plaintiff failed to

participate in a mediation in good faith. Further, see HSBC v. Orlando Eslava

Dade County Florida (same Plaintiff as this matter), wherein Judge Jennifer

Bailey dismissed a case with prejudice and canceled the mortgage where the

Plaintiff violated one of her prior court orders.

It is respectfully requested, that based upon the totality of the proceeding

that this matter be dismissed, and/or the judgment vacated and the matter set for

trial, but at least a stay granted, a new mediation directed and at said mediation

an officer of the actual plaintiff be present in person.

POINT II

THIS COURT SHOULD VACATE THE JUDGEMENT

ENTERED IN THIS MATTER ON FEBRUARY 16, 2010 AND EITHER DISMISS
THE COMPLAINT OR ALLOW DISCOVERY AND SCHEDULE IT FOR TRIAL

Rule 4:50-1 provides on “motion with briefs...the Court may relieve

a party ...from a final judgment or order for the following reasons” and

enumerates six (6) reasons. Sub-paragraph (f) provides: “for any other reason

justifying relief from the operation of the judgment or order”. It is under that
provision that this motion is made.

Prior to itemizing the reasons why this motion should specifically be

granted, we ask the court to take judicial notice to the current mortgage upheaval

caused by “robo-signers” who execute foreclosure documents in mass, and the

fact that the AG in all 50 states is looking into this problem. In the instant case

we have No note produced in the complaint or at the time the motion for

Summary judgment was made, and we have 'assignment” executed by an

partner in the plaintiffs law firm and notarized by an employee in that firm. That is

worse than a robo-signer because she is in a clear conflicting role and

would have no access to the files of the one whom she is allegedly signing

on behalf of!!!!!

Thus, based on the current issues and this fact alone this request for relief

from this Judgment should be granted.

In greater detail , please note that the Plaintiff alleges that when this

mortgage debt was created that the defendants executed a “promissory note” to

“FGC Commercial d/b/a Fremont” and a mortgage to “MERS”. Thus, there was

separate instruments to different persons.

Plaintiff now claims that they ‘own” the mortgage having taken it “by

assignment” from MERS. They attach a copy of that alleged assignment which

defendants dispute as invalid.

Since the Plaintiff in its Complaint and Motion for Summary Judgment did

not produce the original note and did not produce any endorsements of the note

to them, or any proof how it was acquired and if in fact they are the owner with a
financial interest, they cannot be considered the owner and holder of that

obligation. Since they do not own the debt, they have no standing to claim the

default and proceed with this foreclosure. To have legal standing to maintain a

foreclosure action the party maintaining that action must own the debt and be the

beneficial owner of it.

The Courts of New Jersey have not yet addressed these issues,

except in recent decision of Justice Todd (Bank of New York v. Raftogianis cited

above) . In instances where there is no New Jersey case law “on point' the

Courts have utilized opinions from other jurisdictions for guidance. ( Greate Bay

Hotel and Casino v. City of Atlantic City, 264 NJ Super 213, 217-218, 624 A. 2d

102 (NJ Super L 1993 and Gregory v. Allstate 315 NJ Super 78, 82-83, 716 A. 2d

573 (NJ Super L 1997).

Recently there has been a major upheaval in the mortgage industry

involving mortgage backed securities and an separate upheaval in the Courts

involving the foreclose process when “lenders’ attempt to foreclose without

producing proper and complete assignments and the original notes properly

endorsed. This began in Ohio, on October 31, 2007 in the United States District

Court (N.D. Ohio) Judge Christopher A. Boyko ( In re Foreclosure Cases 2007

WL 3232430 (ND Ohio October 31, 2007) wherein Judge Boyko dismissed 14

foreclosure actions based on the Plaintiff-lenders inability to establish standing.

Based upon their failure to produce notes and mortgages to the lender properly

endorsed and assigned. He continued in his decision to say that “the court

possesses the independent obligations to preserve the judicial integrity of the

Federal Court and to jealously guard federal jurisdiction”. In a footnote he

indicated that the Courts must act as ‘gatekeepers” on the issue of standing. In

some colorful verbiage after saying what some things are worth he stated: “the

jurisdictional integrity of the United States District Court-Priceless”. The

jurisdictional integrity of the New Jersey Superior Court should also be priceless

and this complaint dismissed. Thus Court has no less obligation, but to deny

judgment to anyone who fails to have ‘standing’ to maintain an action for the

relief they seek. That decision was followed two weeks thereafter by another

decision the United States District Court (again ND Ohio) wherein Judge

Kathleen McDonald O’Malley dismissed thirty-two (32) foreclosure actions for

lack of standing. In her decision she stated “a foreclosure Plaintiff…especially

one not identified on the note and/or mortgage at issue, must attach to its

complaint documentation demonstrating that it is the owner and holder of the

note and mortgage”. (In Re Foreclosure Actions 2007 WL 4034554 (ND Ohio,

November 14, 2007). See also In Re foreclosure cases 2007 WL 4056586 (S.D.

Ohio, Nov. 15, 2007) wherein a Judge of that District agreed with Judge Boyko

and again stressed that judicial integrity in these cases was “priceless” and again

dismissed foreclosure actions based on Judge Boyko’s reasoning.

Further, the alleged assignment of the Mortgage that the Plaintiff is relying

is “void”. However, legally the issue of whether or not MERS has the standing to

commence a foreclosure action, and thus the ability to assign the mortgage (if it

doesn't own anything it has nothing to assign) has been determined (that they

DON'T have standing) in many Courts. It appears that many courts are holding
that MERS does not have standing to pursue a foreclosure since they do not hold

a beneficial interest in the mortgage, and therefore they have no interest to

assign, so their assignments without further proof have no legal force and effect.

In New York, in 2006, in LaSalle Bank National Association v. Lamy , 12

Misc. 3d 1191 (NY Supp,2006), the Court held that LaSalle Bank as assignee of

MERS, had no ownership in the mortgage, and as such, “no cognizable claim for

foreclosure”. The court further stated “it is axiomatic that to be effective, an

assignment of a note and mortgage given as security therefore must be made by

the owner of such note and mortgage and that an assignment made by entities

having no ownership interest in the note and mortgage pass no title therein to the

assignee”. That court then concluded that a nominee of the owner of a note and

mortgage may not effectively assign the note and mortgage to another for want

of an ownership interest in said note and mortgage.

In Florida, in Aurora Loan Services v. Mendes da Costa (circuit Court 20th

Judicial Circuit (09-142-CA April 28, 2010) Judge Rob Crown reviewed and

discussed “MERS cases” all over the Country and decided that without any

specific evidence of authority to act and proof that the note and mortgage were

specifically assigned and paid for they HAD NO STANDING and he dismissed

the Complaint. ( see also JP Morgan Chase v. Doldron, Case no. 16-2006-CA-

000998_MA, 4th Judicial Circuit Fla for a discussion of MERS assignments, with

the Court again holding MERS had no standing to sue or assign). In his ruling

(Judge Crown-Aurora Case) cited how MERS works and in DISMISSING the

case and invalidating MERS assignments he reviewed Mortgage Electronic

Registration Systems v. Nebraska Department of Banking, 704 NW 2d 784 (Neb.

2005):wherein The Supreme Court of Nebraska held (with emphasis) that “MERS

is contractually prohibited from exercising any rights with respect to mortgages

(ie foreclosures) without the specific authorization of the member...There is no

evidence of any such authorization in the instant case”. There is also NO

EVIDENCE of such authorization in the case at bar and thus should be

dismissed.

Other courts around the Country have also rejected MERS assignments

and dismissed the actions (again see analysis of Justice Todd in Bank of

America v. Raftogianis (cited above).

The Arkansas Supreme Court in Mortgage Electronic Registration

Systems, inc v. Southwest Homes 2009 WL 723182 (2009, Supreme Court of

Arkansas ) stated:

“We specifically reject the notion that MERS may act on its own,
independent of the the direction of the specific lender who holds the repayment
interest in the security instrument at the time MERS purports to act...Nothing in
the record shows that MERS had authority to act”.

In our case that is also true. The mortgage was held by MERS as nominee of

FGC. The plaintiff makes no allegations and offers no evidence that FGC

authorized MERS or anyone else to assign this mortgage. Additionally, “IF” the

“new note” tendered by Plaintiffs counsel after the Summary Judgment motion is

properly offered into evidence- that also cannot be the basis of this lawsuit since

it was assigned to another entity Fremont Investment and Loan and thus ONLY

that entity would have standing to prosecute this action or assign that Note.

Thus, Summary judgment should have been denied and the Complaint
dismissed.

The Supreme Court of Kansas also ruled against MERS having standing

and in Landmark National Bank v. Kesler (216 P. 3d 158 (Supreme Court of

Kansas, 2009) which court defined MERS relationship “as more akin to that of a

straw man than to a party possessing all the rights given to a buyer”.

Bankruptcy Courts have also ruled against MERS having anything they

can assign or having standing. See In Re Vargas 396 B.R. 511 (Bankr. C.D,

Cal. 2008 wherein in holding against standing for a MERS assignee stated :

“MERS presents no evidence as to who owns the note, or if it has any

authorization to act on behalf of the present owner”. See also In Re Atlantic

Mortgage Corporation 69 BR 321, 1987 Bankr. Lexis 44 (US Bankruptcy Court

ED MICH) wherein the Court said the Bankruptcy trustee had a better claim to

ownership than the assignees if the assignees did not have properly assigned

notes and In Re: Peter A. Jacobson and Marla Jacobson USBC, WD

Washington, March 10, 2009 where standing to move for relief of a stay was

denied because there was no proof the movant had authority and was assigned

the note. That judge in that decision noted that some Court actually require

“admissible evidence tracing the identity of the various holders and servicers”.

Based on that rational it should be pointed out that New Jersey Court Rules also

require that the Complaint set forth “all assignments in the chain of mortgage

assignments up to the time of filing. (R-4:64-1(b)(!0) and R-4:34-3) which

condition was not meet or plead in this case and is thus an additional reason the

complaint should have been dismissed and Summary Judgment denied.

 In Saxon Mortgage Services v. Hillery (2008 WL 5170180 (ND Cal 2008)

the Court held:

“As noted above, MERS purportedly assigned both the deed of trust and
the promissory note to Consumer...however, there is no evidence of record that
establishes that MERS either held the promissory note or was given authority by
New Century to assign the note...Accordingly, the Court concludes that there is
insufficient evidence that Consumer has standing to proceed with this litigation”

That is exactly the situation here- The plaintiff has produced NO EVIDENCE that
FGC authorized the assignment and thus for this and the other reasons stated
Summary judgment should not have been granted and this action should be
dismissed.

In Connecticut, the Court of Appeals has held that a mortgage holder may

not foreclose absent evidence of ownership of the underlying note, and in Fleet

National Bank v. Nazareth 818 A.2d 69 (2003) held that there is no legal authority

for the assignee of a mortgage to foreclose absent proof of assignment of the

underlying note.

Also see In Re Atlantic Mortgage Corporation 69 BR 321, 1987 Bankr.

Lexis 44 (US Bankruptcy Court ED Mich 1987) wherein a mortgage was

assigned several times. The court held that the bankruptcy trustee had a better

claim to ownership of the loans than the assignees of the mortgages if the

assignees of the mortgages did not also have properly endorsed notes.

Simply put, the Plaintiff alleges only an assignment of the mortgage from

MERS, without any proof of authority from the mortgage holder to assign it to

them. They do not attach to their complaint nor to their motion for summary

judgment a properly endorsed or assigned assigned note and proof of how it

came to them. Thus, they lack standing to maintain this action.

THE ALLEGED ASSIGNMENT OF

THE MORTGAGE IS ALSO VOID AS
A MATTER OF LAW

As stated above, the mortgage assignment is not valid as a matter of law

having coming from MERS since MERS did not have a beneficial interest in the

Note and Mortgage. ( see LaSalle v. Lamy, cited above).

Further, in the instant case and for the purpose of this Motion the Court

must look at this alleged mortgage assignment as suspect. MERS is not a New

Jersey Corporation. MERS does not maintain an office in New Jersey. MERS is

only office is listed in Virginia. Yet, this alleged assignment is executed by an

‘assistant secretary of MERS” in Burlington County, New Jersey, one

“Rosemarie Diamond”. Coincidentally, Plaintiff’s law firm is located in Burlington

County, New Jersey and Rosemarie Diamond is a partner or associate in that law

firm. She has no specific authority offered in evidence to show she had the

authority to execute this assignment. I had asked for document production and

would have taken a deposition on this issue. Since the relief sought herein is

based on contested facts an evidentary hearing must be conducted (see Nolan v.

Lee Ho 120 NJ 465, Woltoff v. Villane 288 NJ Supre 282 (1996) and Matuzzo v.

Koznick 305 NJ Super 469 (app Div 1997).

Basically, since when does the attorney for the assignee execute the

documents on behalf of the assignor? This is a blatant “conflict” and the kind of

“situation” that a Court should fully review and explore. This is more
eggeriosand blatant than the current 'robo-signer” issues in the news

today.

It looks like Plaintiffs counsel is playing “fast and loose” and at the least

their conduct which is suspect should warrant the granting of the requested relief

and the judgment vacated..

CONCLUSION

Simply based on the current “issue' in this industry a mortgage based on

an assignment done by an employee of the Plaintiff's ;aw firm should be

considered 'suspect” and should be the basis to vacate the judgment and order a

full trial and discover. Further the decision of Justice Todd and his reasons

should be considered and if this relief is not granted a stay should at least

granted till appellate review of both cases can be completed. Additionally the

Plaintiffs failure to engage in the mediation process should result in either a

dismissal of this matter or at least a STAY and a new mediation.

Dated: Long Branch, New Jersey

October 13, 2010

respectfully submitted,

-----------------------------------------
LARRY JAY KUSHNER
DEFENDANT PRO-SE

-------------------------------------------
JACQUELINE KUSHNER
DEFENDANT PRO-SE