In Re: Christopher Mongiello
Opinion
Application denied. This Court could not remo a receiver appointed by a state judge even if it CHRISTOPHER M. MONGIELLO wanted to, which it does not. 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 SO ORDERED. TEL: 914 646-8224 therockacademy@mac.com (Mh i , £.0 03/01/24 CL fey RELA UNITED STATES DISTRICT COURT CATHY S#IBEL, U.S.D.J. SOUTHERN DISTRICT OF NEW YORK XX } APPEALS CASE NO. 7:24-cv-00694-CS In Re: } CH 13 BK. CASE NO. 23-22732 CHRISTOPHER M. MONGIELLO } RECONSIDERATION OF Debtor, } MOTION FOR STAY PENDING APPEAL } FOR TERMINATION OF } RECEIVERSHIP } AND FOR CERTIFICATION } EVICTION DATE FEBRUARY 23, 2024 To the Court, Debtor / Appellant Christopher M. Mongiello respectfully requests that the court reconsider the relief sought by the Appellant on the following grounds: At the behest of this court, Mongiello shared the unredacted written offer with the Tiffany Eastman, the temporary receiver. Instead of her consenting to the offer, she objected. She did not consider it. She did not accept it. She instead attacked Mongiello. Then, after receiving her threatening text, Mongiello received an email from Tiffany Eastman’s attorney, where the language from the email clearly was the source of her response. Eastman clearly has no intent to act as a temporary receiver. She has taken no steps to market the property after the lifting of the stay, and her only action to date was to seek an order of eviction of the Appellant. In order to mitigate his damages, he was readily able to find an
arm’s length buyer through the realtor that Mongiello AND Eastman originally used to locate the unit to purchase in the first instance. Mongiello will suffer great and irreparable harm if this sale is not accepted. He will be forced to move out with no ability to find storage, and no ability to find
suitable alternate housing. She takes nothing from the sale of the property. She takes nothing as receiver. According to the April 7th, 2023 Settlement Agreement Eastman and her attorney refer to in their objection to the sale, it says, “THE COURT: Defense counsel, anything to add? Proceedings 8 MR. GEMELLI: Yes, your Honor. The parties have agreed that the second modification that was instituted before the Court and was so ordered by the Court, in the event that the property is sold, the plaintiff is waiving any interest to any of the net proceeds after the payment of the mortgage and carrying charges or any judgments or debts related to the said property as well as the fact that in the event that the plaintiff is appointed receiver, she will waive any commissions, as we discussed, in connection with this matter. Ms. Marino, anything else? MS. MARINO: Just more specifically, Ms. Eastman has been appointed temporary receivership. She is -- part of the agreement is that she is willing to waive any temporary receivership fees incurred to date, as well as future fees incurred in connection with this litigation. MS. KENYON: That's correct, your Honor, that is our understanding.” At the behest of this court, Mongiello shared the offer with the temporary receiver who clearly has waived all rights to the proceeds from the property and all rights to any receivership fees incurred to date as well as all future fees incurred in connection with this litigation. She has been presented with an offer which sells the property, which solves her pretend problem of harm to her credit, (which is unsupported by any evidence, credit report, denial of credit, or evidence of any harm and the subject of pending discovery propounded to her in the bankruptcy court proceedings). She has waived all her rights to all future legal fees from April 7, 2023 to the present. Debtor / Appellant then responded, asking for a simple yes or no response, not an objection. Do you consent to the sale, Yes or No. Her response came not from her, but from her counsel.
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Application denied. This Court could not remo a receiver appointed by a state judge even if it CHRISTOPHER M. MONGIELLO wanted to, which it does not. 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 SO ORDERED. TEL: 914 646-8224 therockacademy@mac.com (Mh i , £.0 03/01/24 CL fey RELA UNITED STATES DISTRICT COURT CATHY S#IBEL, U.S.D.J. SOUTHERN DISTRICT OF NEW YORK XX } APPEALS CASE NO. 7:24-cv-00694-CS In Re: } CH 13 BK. CASE NO. 23-22732 CHRISTOPHER M. MONGIELLO } RECONSIDERATION OF Debtor, } MOTION FOR STAY PENDING APPEAL } FOR TERMINATION OF } RECEIVERSHIP } AND FOR CERTIFICATION } EVICTION DATE FEBRUARY 23, 2024 To the Court, Debtor / Appellant Christopher M. Mongiello respectfully requests that the court reconsider the relief sought by the Appellant on the following grounds: At the behest of this court, Mongiello shared the unredacted written offer with the Tiffany Eastman, the temporary receiver. Instead of her consenting to the offer, she objected. She did not consider it. She did not accept it. She instead attacked Mongiello. Then, after receiving her threatening text, Mongiello received an email from Tiffany Eastman’s attorney, where the language from the email clearly was the source of her response. Eastman clearly has no intent to act as a temporary receiver. She has taken no steps to market the property after the lifting of the stay, and her only action to date was to seek an order of eviction of the Appellant. In order to mitigate his damages, he was readily able to find an
arm’s length buyer through the realtor that Mongiello AND Eastman originally used to locate the unit to purchase in the first instance. Mongiello will suffer great and irreparable harm if this sale is not accepted. He will be forced to move out with no ability to find storage, and no ability to find
suitable alternate housing. She takes nothing from the sale of the property. She takes nothing as receiver. According to the April 7th, 2023 Settlement Agreement Eastman and her attorney refer to in their objection to the sale, it says, “THE COURT: Defense counsel, anything to add? Proceedings 8 MR. GEMELLI: Yes, your Honor. The parties have agreed that the second modification that was instituted before the Court and was so ordered by the Court, in the event that the property is sold, the plaintiff is waiving any interest to any of the net proceeds after the payment of the mortgage and carrying charges or any judgments or debts related to the said property as well as the fact that in the event that the plaintiff is appointed receiver, she will waive any commissions, as we discussed, in connection with this matter. Ms. Marino, anything else? MS. MARINO: Just more specifically, Ms. Eastman has been appointed temporary receivership. She is -- part of the agreement is that she is willing to waive any temporary receivership fees incurred to date, as well as future fees incurred in connection with this litigation. MS. KENYON: That's correct, your Honor, that is our understanding.” At the behest of this court, Mongiello shared the offer with the temporary receiver who clearly has waived all rights to the proceeds from the property and all rights to any receivership fees incurred to date as well as all future fees incurred in connection with this litigation. She has been presented with an offer which sells the property, which solves her pretend problem of harm to her credit, (which is unsupported by any evidence, credit report, denial of credit, or evidence of any harm and the subject of pending discovery propounded to her in the bankruptcy court proceedings). She has waived all her rights to all future legal fees from April 7, 2023 to the present. Debtor / Appellant then responded, asking for a simple yes or no response, not an objection. Do you consent to the sale, Yes or No. Her response came not from her, but from her counsel.
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Meredith Kenyon 8:31AM ‘To: > eG RE: Written Contract Offer- Not Signed Mr. Mongiello, Again, Ms. Eastman — who is the receiver of the property and the only person with authority to enter into a contract with respect to the sale of this property — objects to the contract. | will not engage in further communications regarding this issue. Thank you, Meredith Kenyon Meredith J. Kenyon, Esq. Ressler & Associates 222 Bloomingdale Road, Suite 302 White Plains, New York 10605 Tel: 914-761-2300 Fax: 914-761-2301 mkenyon@westchestermatrimonial.com www.westchestermatrimonial.com cay ACFL te - ree Me qm (2 — WwW 5
Clearly, they have no intention of accepting this offer, no intention of acting as a receiver, and only intend on intentionally causing harm to the bankruptcy estate, cause harm to the debtor, and incur damages for which they have already agreed they are not entitled to ever recover. The April 7th, settlement agreement is quite explicit. Eastman has waived her rights to any of the proceeds from the sale of the property; waived her rights to any commission for the sale of the property; waived her rights to any fees as a receiver; and waived her rights to future legal fees after April 7th, 2023. There was absolutely NO reason not to accept the offer. Debtor asked for an explanation or justification if the receiver did not consent. Instead of responding, her counsel just reiterated her objection and said she objected. See the attached correspondence chain. Tiffany Eastman has breached her fiduciary duties as a receiver. “The elements of a claim for breach of fiduciary duty under New York law are "breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages."[234] Generally, no fiduciary duties arise where parties deal at arm's length in conventional business transactions.[235] However, a fiduciary relationship may arise where the parties to a contract specifically agree to such a relationship, or if "one party's superior position or superior access to confidential information is so great as virtually to require the other party to repose trust and confidence in the first party."[236] The plaintiff must demonstrate 196*196 that the defendant was "under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation."[237] "While the `exact limits' of what constitutes a fiduciary relationship are `impossible of statement,' a fiduciary relationship may be found in any case `in which influence has been acquired and abused, in which confidence has been reposed and betrayed.'"[238] Contractual relations or formal writings are not required to establish a fiduciary duty.[239] "Rather, the ongoing conduct between parties must be considered."[240] Whether a party reposed confidence in another and reasonably relied on the other's superior expertise or knowledge is a "fact-specific inquiry."[241] Where a plaintiff alleges a breach of fiduciary duty by conduct not amounting to fraud, such as breach of a duty of care, disclosure, or loyalty, the general pleading standards set out by Rule 8(a) of the Federal Rules of Civil Procedure, not the heightened standards of Rule 9(b), apply.[242]” The elements of a claim for breach of fiduciary duty under New York law are "breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages." SCS Commc'ns., Inc. v. Herrick Co., 360 F.3d 329, 342 (2d Cir.2004). DUTY: As a result of this direct appointment of the receiver, a fiduciary relationship has been established. Her duties as a receiver include just the sale of the property and then require the proceeds of that sale be deposited with counsel for the debtor in the bankruptcy. She had two jobs, sell the property and deposit the money with debtors counsel. The breach of that duty occurred when the receiver objected to an extremely favorable offer which was for MORE money than the receiver herself tried to sell the property for in the past, and it permits the Debtor / Mongiello to remain in possession of the unit, only paying the association dues. She has no right to evict the Debtor, and had no right to object to the favorable terms of a sale which exceeded the the terms of the offer she tried to accept prior. CAUSATION: As an actual and proximate cause of rejecting the offer, the Debtor has caused irreparable harm to the Debtor. Tiffany Eastman did not have the power to reject an offer to sale of such a great magnitude. As an actual and proximate cause of rejecting this offer, the Debtor now has a cause of action against Tiffany Eastman for breach of fiduciary duty and for exemplary damages. DAMAGES: The offer was unbeatable, and as a result of this breach, the Debtors damages include the value of those rent savings for fifteen years, and at $4000 a month, the debtor expects his damages to be $750,000 directly caused by the Eastman and her counsel. RELIEF SOUGHT The Debtor / Appellant respectfully prays that the court reconsider its decision, and immediately remove Eastman as receiver, permit the Debtor / Appellant to accept the offer immediately before the receiver communicates the rejection to the offeror and cause irreparable harm to the Debtor. RESPECTFULLY SUBMITTED DATED: FEBRUARY 29TH, 2024 ____________________________________ CHRISTOPHER M. MONGIELLO 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 TEL: 914 646-8224 therockacademy@mac.com EXHIBITS 1. EMAIL TO EASTMAN INCLUDING UNREDACTED OFFER From: The Rock Academy Kind Reeards. CHRIS MONGIELLO (W) 914-560-4172 Chris@TheRockAcademyl.com (m) 914-646-8274 TheRockAcademy] com Standard Form Contract for Purchase and Sale of Real Estate THIS IS A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, WE RECOMMEND ALL PARTIES TO THE CONTRACT CONSULT AN ATTORNEY BEFORE SIGNING, 1. IDENTIFICATION OF PARTIES TO THE CONTRACT A, SELLER - The seller □□ (Christopher Michael Mongialle B, Residing at_25 Leroy Place, PH#/, New Rochelle, N'Y 10805 (The word “Seller” refars to each and all parties who have an ownership intarestin the property.) G, PURCHASER =The purchaseris FRANK (Ol FTT D, Reseding al (The word “Purchaser” refers to each and all of those whe signed below as Purchaser.) ?, PROPERTY TO BE SOLD The property and improvements which the Sellar is agreeing to sell and witch the Purchaser is agresing to purchase is known as located in the city, village or town of in WWeetchecter County, in the State of New ork, This property imcluctes all the Seller's nights and privileges, □□ any, to all land, water, streets and roads annexed to, and on all sides of the property, The lot size of the property is approximately . 3, ITENS INCLUDED IN saLe: Appliances including new refrigerator, washer, dryer, tankless water healer, fixtures The items listed above if now in or on said premises, and owned by the Seller free from all liens and encumbrances, are included in the sale “as is on thee date of this offer, together with the following items: □ 4, ITEMS EXCLUDED FROM SALE The following itams are excluded from the sale: Furniture, items that are not attached to the property. . 5, PURCHASE PRICE . . The purchase price is Five Hundred Thirty Seven thousand dollars ($537 ,00.00) cash on closing DOLLARS @ 537,000,00 ) The Purchaser shall pay the purchase price as follows: A, $5 000 Deposil with lve contract and held pursuant to paragraph 16 herein a, 5 Additional deposit on CG $632,000 In cash, certified check, bank draft or attommey escrow account check at closing / BD Othor} _ Buyers Share of Closing Costs per escrow officer to be determined. & MORTGAGE CONTINGENCY not applicable. A, This agreement is contingent upon Purchaser obtaining approval of a Conventional, FHA ar □□□ PHA or VAL see attached required addendum) or mortgage loan of $ for a tenn of no more than years ad ain iniliay fixed or adjusiable nominal interes! rate not to exceed “ (percent), Purchaser agrees to use diligent éffarts to obtan said approval and shall apply for the mortgage loan within business days after the Sellar has accepted this contract, Purchaser aqress lo analy for such mortgage loan to al lees! one Jending instilulion or licensed mortgage broker, Upon receipt of a written morgage comm¢mitment or in the event Purchaser chooses to waive this mortgage contingency. Purchaser shall provide notice in writing ta of Purchaser's receipt of tha mortgage commitment or of Purchaser's waving of this conlingency, Upon receipt of such notion thes contingency shall be deemed waived or satisfied as the case may be, In the avent notice a8 called for in the preceding sentence has nol bean recewed on or before ihen ether Purchaser or Seller may within five business days of such date terminate, or the parlies may mutually agree to extend, this contract By written noti¢e to » Ubon receipt of termination notice fram either party, and in the case of nobee by the Purchaser, proof af Purchaser's inability lo ablain said morigage approval, his agreement shall be cancelled, null amd void, and all deposits made hereunder shall be returned to the Purchaser. 9, Seller's Contribution: At closing, ae 8 credit toward prepaide, closing costs and/or points, Sever shall credit to Purchaser 5 or %4 (percent) of the purchase price or $ mortgage amount. Purchaser's Initials Seller's Initials * Sale is contingent on the following terms: 1. Long escrow (initial 90 days from date signed 2. Removal of Tiffany Eastman as receiver; her written consent to the sale without further interference; or her resignation as receiver. Motions are pending in multiple courts for her removal. 3. Completion of the two adversary complaints against both mortgage lenders (declaratory relief pending on both mortgages); Closing can occur 30 days after conclusion of each case and expiration of time to appeal. Pending are motions for summary judgment on the firs! 7. MORTGAGE EXPENSE AND RECORDING FEES and motion for entry of default and default judgment on the second. The Mortgage Recording Tax imposed on the morgager, morgage and deed recording fees, expenses of drawing papers and any ether expenses to be incurred in connection with procuring a mortgage, shall be paid by tha Purchaser. a, QTHER TERMS ee Above, 4. Seller to be allowed to remain in possession as a tenant for no less than a ten year term where rent to be paid is equivalent to the association dues, Lease is renewable on the same terms for 9, TITLE AND SURVEY Contingencies, A x 4thyear abslract of title, fax search and any continuations thergef, or a_ x fee fille insurance policy, shall be obfained al the expense of Purchaser or Seller, (lf both boxes are cheeked, the option af whether an Abstract of Title or fee policy is provided shall be that of toe party paying for same.) The Sefer shall cooperate in providing any available survey, abstract or tile or title insurance policy information, wilhoul cost to Purchaser, The Purchaser shall pay he oost of updating any such survey or the cost □□ a new sureey, 10, GONDITIONS AFFECTING TITLE The Seller shall convey and the Purchaser shall accept the property subject to all covenants, conditions, cestrictions and easements of record and zoning and environmental protection jaws so jong as the property is notin violaten thereat and any of the foregoing doea not prevent the intended use of ihe property for the purpose of privegte residence ; also subject to any existing tenancies, ary unpaid instalments of street and other improvement assessments payable after the date of the transfer of tile to the property, and any state of facts which an inspection and/or accurate survey may show, provided that nothing in this paragraph renders the title to the property unmarketable. 41, DEED The property shall be iransfered from ‘Seller to Purchaser by means of a ‘Warranty Deed, with Len Covenant, or dead, furnished by the Seller, The deed and real property transfer gains tax affidavit will be properly prepared and signed so that it will be accepled for recording by the County Clerk in the County in which the property is located, If the Seller is transferring lhe property as an executor, administrator, trustee, committee, or conservator, the deed usual te such cases shall be accepted, 412, NEW YORK STATE TRANSFER TAX, ADDITIONAL TAX AND MORTGAGE SATISFACTION The Seller shall pay New ‘ork State Real Property Transfer Tax imposed by Sechon 1402 of the Tax Law and further agrees to pay the expenses of procuring and recording satisfactions of any existing mortgages. If applicable, the Purchaser shall pay the Additional Tax favk/a the “Mansion Tax’ of “Luxury Tax") imposed by Section 140244 of the Tax Law on transfer of $1,000,000 or mere, 19, TAX AND OTHER ADJUSTMENTS The follwing, if any, shall be apportioned so thal the Purchaser and Seller are assuming the expenses of ihe property and income from the property as of the date of tranefer tilile, A. Rents and security deposils, Seller shall assign to Purchaser all writen leases and security deposils affecting the promises, GB, Taxes, sewer, water, senis, and condominium or homeawner association fees, C, Municipal assessment yearly installments except as set forth in item "10", D, Fuel, based upon fair market value al time of closing as confirmed by @ certificaie provided by Seller's supplier, 14, RIGHT OF INSPECTION AND ACCESS Purchaser andor representative shall be given access to [he property for any tests or inspeclions required by lhe berms of this conlract upon reasonable notice to ihe Seller or a representative, Purchaser and/or a representative shall be given the right of inspection of the property, al a reasonable hour within 48 hours orior to transfer of tile, 418, TRANSFER OF TITLEPOSSESS|ON The transfer of tile to the property from Seller to Purchaser will take place at the office of the lender's attorney if the Purchaser obtains a mortgage Ioert fom 2 ending instilution, Olherwise, the closing will be at the office of the attorney for the Seller, The closing will fe on or before (Date) Gales set forth above 20__. Possession shall be granled upon bangecst □□□□□□□□□□□□□□□□□□□□□□□ agreed upery in writing signed by both parties. 16, DEPOS|TS It is agreed that any deposits by the Purchaser are to be deposited with tha Listing Broker at as part of the purchase price. If ihe Seller does nol accept lhe Purchaser's offer, all deposits shall bs returmed to Purchaser. Ifthe offer is accepted by the Seller, all deposits will be held in escrow by the Listing Broker and deposited inte the Listing Broker's escrow a@ocount in the institution identified above, until the contingencias and terms have been mei. The Purchaser will receive credit on the total amount of the deposit toward the purchase price, Broker shall then apoly the total deposit to the brokerage fee, Any excess of deposit over and = above the fee earned will go to the Seller, if the cantingences and terms contained herein cannot be resolved, or in the event of default by the Seller or the Purchaser, the deposits will ba held by the Broser pending a resolution of the disposition of the deposits. If the Broker holding the deposit determines, in its sole discretion, that sufficient progress is not being made toward a resolution of the dispute that Broker may commence an interpleadead action and pay the depasit mones into Supreme Court of the county where the property is located, The Brokers reasonable cests and expenses, including attorney's fees, shall be paid from the deposit upon the resolution of the interpleaded action and the remaining net proceeds of the deposit shall be disbursed to the prevailing claimant. Inthe event the deposil is insufficient to cover the Broker's entillement, the non=prevailing party shall pay the remaining balance, Purchaser's |nitals Seller's |nitiala 17, TIME PER|OD OFFER Purchaser and Seller understand and agres that, unless earlier withdrawn, this offeris good until | 2-00) am. pum. Warch 20th ss A and if not accepted by the Seller prior to that time, then this offer becomes null and void, 14, REAL ESTATE BROKER AND COOPERATING BROKER COMPENSATION A, REALESTATE BROKER: The Purchaser and Seller agree thal NICHOLAS RUSSO and NO ONE ELSE brought about the sale, and Seller agrees to pay the brokerage commission as set forth im the [sting agreement and Purchaser agrees to pay brokers’ corimission as se! farth in the buyers broker agreement, if applicable, B, COOPERATING BROKER COMPENSATION The Cooperating Broker shall be paid 4 54 (pencent) of the purchase price or 577480 re later tain closing, The amount paid shall be credited to the Purchaser as part of the purchase price and to the Seller as part of the commission due te the Listing Groker, The Cooperating Broker agrees lo apply this amount against its commission under any agency agreement with Purchaser, Nothing herein shall be deemed to have altered the agency relationship disclosed, 19, AOTORWEY APPROVAL This agreement is contingent upon Purchaser and Sellar obtaining approval of this agreement by their attomey as to all matters, without limitation, This contingency shall be deemed waived unless Purchaser's or Seller's attorney on behalf of their client notifies in writing, #8 called for in paragraph "23", of their disapproval of the agreement no later than . FPurcheser's or Seller's attorney so notifies, than this agraamant shall be deemed cancalled, null and void, and all deposits shall be retumed to the Purchaser, 20, CONDITION OF PREMISES The buildings on the promises are sold “as is" withoul warranty as la condiben, and the Purchaser agrees lo lake tlle to toe buildings “as is" in their present cond tion subject to reasonadle wae, wear, tear and natural deterioration between the date hereof and the closing of tithe: except that in the case of any destruction within the meaning of the provisions of Section $1311 of the General Obligations Law of the State of New ‘York entitled Uniform Vendor and Purchase Risk Act, “said section” shall apply te this contract, 21. INSPECTIONS - WOT APPLICABLE, THE PROPERTY IS BEING SOLD AS-IS. This agreement is contingent uper all of the following provisions marked with the parties’ initials, Al those provisions marked! wilh “NA* stall not apoly. NIA STRUCTURAL INSPECTION: A determination, by a New York State licansed home inspector, ragistared architect or licensed engineer, or a third party who is . or other qualified person, that the promises arn free from any substantial siructural, mechanical, electrical, plumbing, rool covering, walor or sewer defects, The term substantial to refer to any Individual repair which will reasonably cost over $1,500 to conect, The following buildings or ites on the premises are excluded fram this inspection: NAA WOOD DESROYING ORGANISMS (PEST, TERMITE |NSPECTION): A determination by a Cerlified Exterminator or olher qualified professional that the premises are free from infestation or damage by wood destroying organisms. MAL SEPTIC SYSTEM INSPECTION: A test of the septic system by a licensed professional engineer, licansed plumber, seplic system contractor, County Healt Department, or other qualified person indicating thal (he system is in working order, NA, WELL WATER FLOW ANDIOR QUALITY TESTS: (1) 4 potabilily water equality lest lo mer! (he standards of the New York State Department of Heakh to be performed by a New York State approved laboratory, (2) any chemical, metal, imorganic or olher tests as the Purchaser may request, and (3) a flow test to be performed indicating a minimum flow of Sufficiant quantity to: (a) ____ obtain mortgage financing on subject property; and/or (b} to produce gallons per nvewute for hours, NIA RADON INSPECTION: The Purchaser may have the dwelling located on the property tested by a reputable service for ihe presence of radon gas, The Saller agrees to maintain a “closed house condition” during the test. “Closed=housed condition” shall mean that the Seller shall keep the windows closed and minimize the number of times the exterior doors ans opened and the time that trey are lett open, The Seller agrees to comply with all reasonable requirements of te testing service in commection with the test, provided such compliance shall be at no cost to the Seller. If the test reveals that the level of radan gas is four (4) picocuries per liter or higher, the presence of radon gas shall be dearmed grounds for cancellation of the cantract, All tests andor inspections contemplated pursuant to thes paragraph “21° shall be completed on of before □ and at Purchaser's expense, and shall be deemed waived unless Purchaser shall notty of failure of any of these tests and/or imspections. If Purchaser so motifies, and further supplies written confirmation by a copy of the test results and/or inspection reports(s), or letter(s) from inspector, hen this entire agreement shall be deermed cancelled, mull and void and all deposits made hereunder shall be returned to Purcheser or, at Purchasers opben, said cancellabon may be deferred for a period of ten (10) days in order ta provide the parties an opportunity to otherwise agree in writing. Purchaser's Initials Sailers Initials 22, ADDENDA AND MANDATED FORMS: The following altached addenda are part of this Agreement, N/A A. B. C. DB, E, F, 24, NOTICES All notices contemplated by this agreement shall be in writing, delivered by [a] certified or registered mail, retum receipt requested, postmarked no later than the required date; [b] by telecopyifacsimile transmitted by such date; [c] by personal delivery by such date, 24, ENTIRE AGREEMENT This contract contains all agreements of {he parties herelo, There are no promises, agreements, terns, condilions, warrantios, representabions or Stalaments other than contained herein, This Agreement shall apely to and bind the heirs, legal representatives, successors and assigns of the respective parties. it may not be changed orally, The parties agree that the venue for any issues conceming this contract ehall be the county in which the properly is located, Date Time Date Time Purchaser FRANK COLETTI Seller CHRISTOPHER MICHAEL MONGIELLO Purchaser Sellar Selling Broker Listing Broker =AIJCHOLAS RUSSO The following is for informational purposes only: PLEASE COMPLETE Atlomney for Purchaser Allorney for Seller Name Name John Manning Address Achdrasss __ Phone Fax Phone Fax Purchaser's Email Address Sellers Email Address Purchaser's Phone: Seller's Phone Selling Agent's Email Address Listing Agent's Email Address Selling Agent's Phone Listing Agent's Phone Selling Agert’s Fax Listing Agent's Fax Property Tax Identification Number City, Village, Town Mailing Address of Property to be Sold EXHIBIT 2 – RESPONSE FROM COUNSEL FOR EASTMAN From: Richard Sarcone sarconerichard@hotmailcom & Subject: Fwd: Written Contract Offer- Not Signed Date: February 29, 2024 at 7:19.4M To: The Rock Academy therockacademy@ mac.com Sent irom my Vellzon, Samsung Galaxy smartphone Get Outlook tor Aparold From: Meredith Kenyon EXHIBIT 3 – DIRECT TEXT RESPONSE FROM EASTMAN MIMICKING RESPONSE FROM EASTMAN’S COUNSEL OBJECTING TO THE SALE ee Mies Mage Fone Wire sip no tf Fm Foe _ al here wnt cr rm A am i i io one □□ FF & @ =. B- ei 2 Chaipiegher Mergent fase pee. Coverect fete. fee gee Wan ahaa alee eT a Re etd ed A ie TM Pty Dt tee Dana Abuched pmneied Pa oer | eteed io acer Unie ou obeect be Pan amare dea! | al inden the Suoeere Cloud of appass po comand bg eeing tha property Thad aod ferret pour acer at See gy = Komi miei i = 2 o mp ike TE are Tha eiey Looe ene TheRecAcdeed com = 6 4 a Tele, Deaoke Deocke Daaires sum ae ee over Ge ed Sega 6 fa Chet heges Miser & Beene □□□ cree oncaal beeen god COE LEED EERE Oneonta □□ rane eT an □□ ee EE A □□ SI Ee for ea mvcecdance of ary doubt, | THany Eaaeran eapeeunly io your onniewed uempes be Beware crdere of a == Please ba puicied accordingly a Tank ri, Tiry Coa Me te ee 6 Sa 5 as CHRISTOPHER M. MONGIELLO 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 TEL: 914 646-8224 therockacademy@mac.com UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ____________________________________x } APPEALS CASE NO. 7:24-cv-00694-CS In Re: } CH 13 BK. CASE NO. 23-22732 CHRISTOPHER M. MONGIELLO } } AFFIRMATION IN SUPPORT OF } RECONSIDERATION OF Debtor, } MOTION FOR STAY PENDING } APPEAL } FOR TERMINATION OF } RECEIVERSHIP } AND FOR CERTIFICATION ____________________________________} EVICTION DATE FEBRUARY 23, 2024 To the Court, Debtor / Appellant Christopher M. Mongiello respectfully AFFIRMS AS FOLLOWS: If called to testify, Christopher Mongiello affirms that he can testify to the following facts from his personal knowledge. 1. Debtor / Appellant requests that the court reconsider the relief sought by the Appellant on the following grounds: 2. At the behest of this court, Mongiello shared the unredacted written offer with the Tiffany Eastman, the temporary receiver. 3. Instead of her consenting to the offer, she objected. 4. She did not consider it. 5. She did not accept it. 6. She instead attacked Mongiello. 7. She has not listed the property for sale prior to attempting to evict Mongiello. 8. Then, after receiving her threatening text, Mongiello received an email from Tiffany Eastman’s attorney, where the language from the email clearly was the source of her response. 9. Eastman clearly has no intent to act as a temporary receiver. 10. She has taken no steps to market the property after the lifting of the stay, and her only action to date was to seek an order of eviction of the Appellant. 11. In order to mitigate his damages, he was readily able to find an arm’s length buyer through the realtor that Mongiello AND Eastman originally used to locate the unit to purchase in the first instance. 12. Mongiello will suffer great and irreparable harm if this sale is not accepted. He will be forced to move out with no ability to find storage, and no ability to find suitable alternate housing. 13. She takes nothing from the sale of the property. She takes nothing as receiver. 14. According to the April 7th, 2023 Settlement Agreement Eastman and her attorney refer to in their objection to the sale, it says, “THE COURT: Defense counsel, anything to add? Proceedings 8 MR. GEMELLI: Yes, your Honor. The parties have agreed that the second modification that was instituted before the Court and was so ordered by the Court, in the event that the property is sold, the plaintiff is waiving any interest to any of the net proceeds after the payment of the mortgage and carrying charges or any judgments or debts related to the said property as well as the fact that in the event that the plaintiff is appointed receiver, she will waive any commissions, as we discussed, in connection with this matter. Ms. Marino, anything else? MS. MARINO: Just more specifically, Ms. Eastman has been appointed temporary receivership. She is -- part of the agreement is that she is willing to waive any temporary receivership fees incurred to date, as well as future fees incurred in connection with this litigation. MS. KENYON: That's correct, your Honor, that is our understanding.” 15. At the behest of this court, Mongiello shared the offer with the temporary receiver who clearly has waived all rights to the proceeds from the property and all rights to any receivership fees incurred to date as well as all future fees incurred in connection with this litigation. 16. She has been presented with an offer which sells the property, which solves her pretend problem of harm to her credit, (which is unsupported by any evidence, credit report, denial of credit, or evidence of any harm and the subject of pending discovery propounded to her in the bankruptcy court proceedings). 17. She has waived all her rights to all future legal fees from April 7th, 2023 to the present. 18. Debtor / Appellant then responded, asking for a simple yes or no response, not an objection. 19. Do you consent to the sale, Yes or No. 20. Her response came not from her, but from her counsel. 8:32 or < @ 7 Messages nn Vv Meredith Kenyon 8:31AM ‘To: > G RE: Written Contract Offer- Not Signed Mr. Mongiello, Again, Ms. Eastman — who is the receiver of the property and the only person with authority to enter into a contract with respect to the sale of this property — objects to the contract. | will not engage in further communications regarding this issue. Thank you, Meredith Kenyon Meredith J. Kenyon, Esq. Ressler & Associates 222 Bloomingdale Road, Suite 302 White Plains, New York 10605 Tel: 914-761-2300 Fax: 914-761-2301 mkenyon@westchestermatrimonial.com www.westchestermatrimonial.com cay ACFL te ree Me qm (2 — Ww =
21. Clearly, they have no intention of accepting this offer, no intention of acting as a receiver, and only intend on intentionally causing harm to the bankruptcy estate, cause harm to the debtor, and incur damages for which they have already agreed they are not entitled to ever recover. 22. The April 7t, settlement agreement is quite explicit. Eastman has waived her rights to any of the proceeds from the sale of the property; waived her rights to any commission for the sale of the property; waived her rights to any fees as a receiver; and waived her rights to future legal fees after April 7, 2023. 23. There was absolutely NO reason not to accept the offer. 24. Debtor asked for an explanation or justification if the receiver did not consent. 25. Instead of responding, her counsel just reiterated her objection and said she objected. See the attached correspondence chain. 26. Tiffany Eastman has breached her fiduciary duties as a receiver. 27. DUTY: As a result of this direct appointment of the receiver, a fiduciary relationship has been established. 28. Her duties as a receiver include just the sale of the property and then require the proceeds of that sale be deposited with counsel for the debtor in the bankruptcy. 29. She had two jobs, sell the property and deposit the money with debtors counsel. 30. The breach of that duty occurred when the receiver objected to an extremely favorable offer which was for MORE money than the receiver herself tried to sell the property for in the past, and it permits the Debtor / Mongiello to remain in possession of the unit, only paying the association dues. 31. She has no right to evict the Debtor, and had no right to object to the favorable terms of a sale which exceeded the the terms of the offer she tried to accept prior. 32. CAUSATION: 33. As an actual and proximate cause of rejecting the offer, the Debtor has caused irreparable harm to the Debtor. 34. Tiffany Eastman did not have the power to reject an offer to sale of such a great magnitude. 35. As an actual and proximate cause of rejecting this offer, the Debtor now has a cause of action against Tiffany Eastman for breach of fiduciary duty and for exemplary damages. 36. DAMAGES: 37. The offer was unbeatable, and as a result of this breach, the Debtors damages include the value of those rent savings for fifteen years, and at $4000 a month, the debtor expects his damages to be $750,000 directly caused by the Eastman and her counsel. 38. RELIEF SOUGHT 39. The Debtor / Appellant respectfully prays that the court reconsider its decision, and immediately remove Eastman as receiver, permit the Debtor / Appellant to accept the offer immediately before the receiver communicates the rejection to the offeror and cause irreparable harm to the Debtor. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT EXCEPT THOSE MATTERS WHICH ARE BASED ON MY INFORMATION AND BELIEF, AND AS TO THOSE MATTERS, I BELIEVE THEM TO BE TRUE. RESPECTFULLY SUBMITTED DATED: FEBRUARY 29TH, 2024 ____________________________________ CHRISTOPHER M. MONGIELLO 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 TEL: 914 646-8224 therockacademy@mac.com CERTIFICATE OF SERVICE A true and correct copy of the foregoing has been served by US Mail, Postage Prepaid, First Class mail, on all parties according to the attached mail list. Trustee Thomas C. Frost Chapter 13 Standing Trustee 399 Knollwood Rd Suite 102 White Plains, NY 10603 914-328-6333 U.S. Trustee United States Trustee Office of the United States Trustee - NY Alexander Hamilton Custom House One Bowling Green, Room 534 New York, NY 10004-1408 (212) 510-0500 JEFFREY A. REICH 235 Main Street, Suite 450 White Plains, NY 10601 (914) 949-2126 (914) 949-1604 (Fax) RESPECTFULLY SUBMITTED DATED: FEBRUARY 29TH, 2024 ____________________________________ CHRISTOPHER M. MONGIELLO 25 LEROY PLACE, PH #7 NEW ROCHELLE, NY 10805 TEL: 914 646-8224 therockacademy@mac.com
In Re: Christopher Mongiello (In Re: Christopher Mongiello) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.