Preview
FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
NEXTRES, LLC,
Index No.: 603298/2024
Plaintiff,
-against- VERIFIED ANSWER
DORA DEANE LLC, AMY ELISE SAFRANEK,
PEACHES UNLIMITED, INC.; STEVE MCDONLY;
HESHAM ATWA MD, MILLS POND NURSING AND
REHABILITATION CENTER DBA JOPALAT
ST. JAMES, LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE,
JOHN DOE #1 and JOHN DOE #10, the last 10 names
Being fictitious and unknown to Plaintiff, the persons
Or parties intended being the persons or parties, if any,
Having or claiming an interest in or lien upon the
Mortgaged premises described in the Verified Complaint,
Defendants.
Defendants DORA DEANE LLC (hereinafter “DDLLC”) and AMY ELISE
SAFRANEK (hereinafter “SAFRANEK”), by their attorneys, CZIK LAW PLLC, as and for
their Answer to the Complaint, hereby allege upon information and belief:
1. Deny having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs “1”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”,
“13”, “16”, “23”, “40”, “43”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “54”, and “56” of
Plaintiff’s verified complaint.
2. Deny each and every allegation contained in paragraphs “14”, “15”, “17”, “18”,
“19”, “20”, “21”, “22”, “24”, “25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”,
“36”, “37”, “38”, “35”, “39”, “41”, “42”, “44”, “53”, and “55” of Plaintiff’s Complaint.
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3. Defendants admit the allegations contained in paragraphs “2” and “3”.
4. Interpose a general denial to the entire Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over Defendants DDLLC and SAFRANEK and this matter.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this litigation.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
The Complaint filed herein, and each purported cause of action alleged therein, fails to
state facts sufficient to constitute a valid cause of action against Defendants DDLLC and
SAFRANEK.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Plaintiff fails to plead the requisite elements of each cause of action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The Complaint fails to state a claim upon which relief can be granted.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The Complaint is barred to the extent that damages, if any, resulted from the acts and/or
omissions of Plaintiff.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiff failed to comply with regulations of the Department of Housing and Urban
Development in that they failed to attempt to establish a face-to-face interview with Defendants
DDLLC and SAFRANEK before three full monthly installments due under the mortgage were
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unpaid (24 C.F.R. 203.604); the loan servicer did not evaluate Defendants DDLLC and
SAFRANEK for loss mitigation before four full monthly installments due under the mortgage
were unpaid (24 C.F.R. 203.605) and Plaintiff commenced this foreclosure action before three full
monthly installments due under the mortgage were unpaid (C24 C.F.R. 203.606)
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
Plaintiff failed to comply with the requirements for the notice of default in Defendants
DDLLC and SAFRANEK’s mortgage loan agreement, a condition precedent to this foreclosure
action. Additionally, Plaintiff failed to comply with the requirements of NYRPAPL 1304, a
condition precedent to this foreclosure action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
The Court lacks jurisdiction over this proceeding upon the grounds that Petitioner has no
standing to initiate this action as it has not complied with New York Limited Liability Statute
§206, in that within one hundred twenty (120) days after the effectiveness of its initial articles of
organization, it failed to publish once in each week, for six successive weeks, in two newspapers
of the county, in which the office of the limited liability company is located, a copy of the same
or a notice containing the substance thereof, and accordingly, Petitioner has no legal capacity to
sue pursuant to CPLR §3211(a)(3).
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff and/or Plaintiff and or its predecessor(s) in interest
violated various provisions of the Truth in Lending Act (“TILA”), which is codified at 15 U.S.C.
section 1601 et seq. and Regulation Z section 226 et seq. by inter alia: a) failing to deliver to the
Defendants DDLLC and SAFRANEK two copies of notice of the right to rescind (with all of the
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pertinent statutory disclosures); b) failing to properly and accurately disclose the “amount
financed”; c) failing to clearly and accurately disclose the “finance charge”; d) failing to clearly
and accurately disclose the “total of payments”; e) failing to clearly and accurately disclose the
“annual percentage rate”; f) failing to clearly and accurately disclose the number, amounts and
timing of payments scheduled to repay the obligation; g) failing to clearly and accurately itemize
the amount financed.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff and or Plaintiff and or its predecessor(s) in interest
violated various provision of the Real Estate Settlement Procedure Act (“RESPA”), which is
codified at 12 U.S.C. section 2601, et seq. by, inter alia: i) Failing to provide the Housing and
Urban Development (HUD) special information booklet, a Mortgage Servicing Disclosure
Statement and Good Faith Estimate of settlement/closing costs to Defendants DDLLC and
SAFRANEK at the time of the loan application or with three (3) days thereafter); ii) failing to
provide Defendants DDLLC and SAFRANEK with an annual Escrow Disclosure Statement for
each of year of the mortgage since its inception; iii) giving or accepting fees, kickbacks and/or
other things of value in exchange for referrals of settlement service business, and splitting fees
and receiving unearned fees for services not actually performed; iv) charging a fee at the time of
the loan closing for the preparation of truth-in-lending, uniform settlement and escrow account
statements.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff and or its predecessor(s) in interest violated
various provisions of the Home Ownership Equity Protection Act (“HOEPA”) pursuant to 15
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USC § 1639 et seq. by failing to make proper disclosures and committing intentional predatory
lending by including prohibited terms. These violations provide an extended three year right to
rescission and enhanced monetary damages for the Defendants DDLLC and SAFRANEK.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, in addition to the facts alleged in the preceding paragraphs,
the Plaintiff and or Plaintiff and or its predecessor(s) in interest also violated the Unfair Trade
Practices Act, Administrative Code of City of NY § 20-700 by: i) Failing to promptly and/or
properly pay taxes or insurance premiums when due, so that the maximum tax discount available
to Defendants DDLLC and SAFRANEK could be obtained on Defendants DDLLC and
SAFRANEK’s property and so that insurance coverage on the property would not lapse; and ii)
failing to provide Defendants DDLLC and SAFRANEK with an annual statement of the escrow
account kept for payment of taxes and insurance; and iii) failing to properly disclose at or prior
to closing all costs, fees and expenses associated with the loan; iv) charging excessive fees and
making payments of fees to parties not entitled to receive them; v) obtaining a yield spread
premium (YSP) based upon the “selling” of a higher interest rate, and/or non-disclosure of the
range of interest rates for which Defendants DDLLC and SAFRANEK qualified; vi) all such
actions by Plaintiff and or its predecessor(s) in interest are unconscionable acts or practices,
and/or unfair or deceptive acts or practices in the conduct of trade or commerce
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff does not have standing to bring a foreclosure
action as Plaintiff is not in physical possession of the mortgage note. In order to bring a
foreclosure action in New York, plaintiff must own both the mortgage and note at the inception
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of the action; Deutsche Bank National Trust Company v. Barnett, 88 A.D.3d 636, 931 N.Y.S.2d
630, 2011 WL 4600619 (2d Dep’t 2011) (“plaintiff has standing where it is the holder or
assignee of both the subject mortgage and of the underlying note at the time the action is
commenced). Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dep’t. 1988) (absent the
transfer of the debt (the note), assignment of the mortgage is a nullity); Katz v. Eastville Realty
Co., 249 A.D.2d 243, 672 N.Y.S.2d 308 (1st Dep’t. 1998) (legal or equitable interest in mortgage
is required to foreclose); see also Federal National Mortgage Association v. Youkelsone, 303
A.D.2d 546, 755 N.Y.S.2d 730 (2d Dep’t. 2003) (mortgage is merely incident to and collateral
security for the debt; assignment of mortgage alone does not pass the debt itself); U.S. Bank,
N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dep’t 2009) (incomplete and
conflicting evidence insufficient to establish that MERS effectively transferred the note to
plaintiff prior to the commencement of the action).The note and the mortgage are inseparable;
the former as essential, the latter as an incident. An assignment of the note carries the mortgage
with it, while an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S. 271
(1872).
For an assignee of a mortgage loan to have standing to foreclose, the assignment must be
complete when the action is commenced. Ownership of the note and mortgage may be
established by the lending documents themselves, or by assignment. An assignment can be made
in writing or by physical delivery of the mortgage and note. See Deutsche Bank Nat. Trust Co. v.
McRae, 27 Misc.3d 247, 894 N.Y.S.2d 729 (N.Y.Sup. 2010). If an assignment is in writing, “the
execution date is generally controlling and a written assignment claiming an earlier effective date
is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage
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was, in fact, previously effectuated.” See LaSalle Bank N.A. at Trustee v. Ahearn, 59 A.D.3d 911
(3d Dep’t 2009) (retroactive assignment ineffective to confer standing upon assignee in
foreclosure action commenced prior to execution of assignment). Accord, Countrywide Home
Loans, Inc. v. Gress, 68 A.D.3d 709, 888 N.Y.S.2d 914 (2d Dep’t 2009) (retroactive assignment
executed after commencement of action ineffective to confer standing on assignee in foreclosure
action commenced before execution of assignment); Wells Fargo Bank N.A. v. Marchione, 69
A.D.3d 204, 887 N.Y.S.2d 615 (2d Dep’t 2009) (affirming dismissal where assignment was
executed after filing of action but before service of summons and complaint; commencement of
action measured by filing, not by service; execution date of assignment is controlling; retroactive
assignment ineffective); Bank of New York v. Andrade, (Sup. Ct. Queens Co, Index No.
9700/2007 June 3, 2010) (granting motion to vacate judgment of foreclosure and sale and
dismissing action without prejudice for lack of standing where assignment was executed after
action’s commencement and backdated, even though court had previously signed an order of
reference and a judgment of foreclosure and sale); See U.S. Bank N.A. v. Dellarmo, 294 A.D.3d
746, 942 N.Y.S.2d 122 (2d Dept. 2012) (reversing trial court's denial of motion to dismiss for
lack of standing, finding no standing where corrective assignment relied upon by plaintiff had no
retroactive effect and where there was no evidence of prior physical delivery, and where both the
unrecorded initial assignment and the recorded corrective assignment reflected assignment of
only the mortgage, and not the note).
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed comply with RPAPL 1303. In addition, the process server's affidavit of
service did not indicate that the notice served upon Defendants DDLLC and SAFRANEK
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complied with all of the requirements of RPAPL 1303, including utilizing the proper typeface and
that “"requires the foreclosing party to deliver, along with the summons and complaint, a notice
titled 'Help for Homeowners in Foreclosure' in residential foreclosure actions involving owner-
occupied, one-to-four family dwellings. The statute mandates that the notice include specific
language relating to the summons and complaint, sources of information and assistance, rights and
obligations, and foreclosure rescue scams. It also mandates that the notice be in bold, 14-point type
and printed on colored paper that is other than the color of the summons and complaint, and that
the title of the notice be in bold, 20-point type" (see Flagstar Bank, FSB v Hart, 184 AD3d 626,
628, 123 N.Y.S.3d 515; cf. US Bank N.A. v Hunte, 176 AD3d 894, 897, 110 N.Y.S.3d 53; LNV
Corp. v Sofer, 171 AD3d 1033, 1036, 98 N.Y.S.3d 302).
In addition, "proper service of the notice required by RPAPL 1303 . . . is a condition
precedent to the commencement of a foreclosure action, and it is the plaintiff's burden to show
compliance with that statute" (U.S. Bank N.A. v Ahmed, 174 AD3d 661, 664, 106 N.Y.S.3d 78)
and Plaintiff has failed to prove they are in compliance.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to comply with RPAPL 1306. HN2 RPAPL 1306 (1) provides that in an
action to foreclose a mortgage, lenders "shall file with the superintendent of financial services . .
. within three business days of the mailing of the notice required by [RPAPL 1304]" a form
containing certain information regarding the borrower and the mortgage (see id. § 1306 [2]).
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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Plaintiff brought this action without providing notice to Defendants DDLLC and
SAFRANEK of Defendants DDLLC and SAFRANEK’s right to dispute the debt, pursuant to the
Fair Debt Collection Practices Act. Plaintiff is required to notify Defendants DDLLC and
SAFRANEK, pursuant to 15 U.S.C §§ 1601, et seq., that Defendants DDLLC and SAFRANEK
may dispute the debt and Plaintiff is required to provide verification of the debt. Defendants
DDLLC and SAFRANEK hereby dispute the debt and demand that Plaintiff verify the debt in
accordance with the Fair Debt Collection Practice Act. Plaintiff is required to suspend litigation
until verification of the debt at issue.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
Defendants DDLLC and SAFRANEK raise each and every defense available under the
applicable laws of the State of New York.
Defendants DDLLC and SAFRANEK reserve the right to raise any additional defenses
available to them pursuant to New York State and City law based upon any information discovered
as this matter progresses toward trial and given a reason notice to the plaintiff.
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WHEREFORE, Defendants DORA DEANE LLC and AMY ELISE SAFRANEK kindly
and respectfully request that this Court:
(i) Dismiss Plaintiff’s complaint in its entirety hereby with prejudice; and
(ii) Award Defendants costs and disbursements incurred in the defense and the
prosecution of this suit; and
(iii) Award Defendants their attorneys’ fees and costs pursuant to RPL§ 234; and
(iv) Grant Defendants any and such further relief as the Court may deem just and
proper.
Dated: New York, New York
April 26, 2024
_________________
Steven J. Czik, Esq.
CZIK LAW PLLC
Attorneys for Defendants
Dora Deane LLC and Amy
Elise Safranek
401 Greenwich Street
New York, New York 10013
(212) 413-4462
TO: MCCABE, WEISBERG & CONWAY, LLC
Attorney for Plaintiff
Via NYSCEF
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
The undersigned attorney for Defendants hereby affirms under penalty of perjury and
pursuant to CPLR §2106 the following:
1. The deponent is the attorney for Defendants DORA DEANE LLC and AMY
ELISE SAFRANEK.
2. The deponent has read the attached Verified Answer and that the contents of
the same are alleged upon information and belief.
3. The grounds of my belief as to all matters not stated upon my knowledge and
conversations with Defendant.
4. This verification is made pursuant to CPLR as Defendant AMY SAFRANEK,
also principal of DORA DEANE LLC is currently not present in the county of
deponent’s office.
Dated: New York, New York
April 26, 2024
Steven J. Czik, Esq.
CZIK LAW PLLC
Attorneys for Defendants Dora Deane
LLC and Amy Elise Safranek
401 Greenwich Street
New York, New York 10013
(212) 413-4462
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Preview
FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK NEXTRES, LLC, Index No.: 603298/2024 Plaintiff, -against- VERIFIED ANSWER DORA DEANE LLC, AMY ELISE SAFRANEK, PEACHES UNLIMITED, INC.; STEVE MCDONLY; HESHAM ATWA MD, MILLS POND NURSING AND REHABILITATION CENTER DBA JOPALAT ST. JAMES, LLC, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, JOHN DOE #1 and JOHN DOE #10, the last 10 names Being fictitious and unknown to Plaintiff, the persons Or parties intended being the persons or parties, if any, Having or claiming an interest in or lien upon the Mortgaged premises described in the Verified Complaint, Defendants. Defendants DORA DEANE LLC (hereinafter “DDLLC”) and AMY ELISE SAFRANEK (hereinafter “SAFRANEK”), by their attorneys, CZIK LAW PLLC, as and for their Answer to the Complaint, hereby allege upon information and belief: 1. Deny having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “1”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “16”, “23”, “40”, “43”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “54”, and “56” of Plaintiff’s verified complaint. 2. Deny each and every allegation contained in paragraphs “14”, “15”, “17”, “18”, “19”, “20”, “21”, “22”, “24”, “25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “35”, “39”, “41”, “42”, “44”, “53”, and “55” of Plaintiff’s Complaint. 1 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 3. Defendants admit the allegations contained in paragraphs “2” and “3”. 4. Interpose a general denial to the entire Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE This Court lacks jurisdiction over Defendants DDLLC and SAFRANEK and this matter. AS AND FOR A SECOND AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this litigation. AS AND FOR A THIRD AFFIRMATIVE DEFENSE The Complaint filed herein, and each purported cause of action alleged therein, fails to state facts sufficient to constitute a valid cause of action against Defendants DDLLC and SAFRANEK. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Plaintiff fails to plead the requisite elements of each cause of action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The Complaint is barred to the extent that damages, if any, resulted from the acts and/or omissions of Plaintiff. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to comply with regulations of the Department of Housing and Urban Development in that they failed to attempt to establish a face-to-face interview with Defendants DDLLC and SAFRANEK before three full monthly installments due under the mortgage were 2 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 unpaid (24 C.F.R. 203.604); the loan servicer did not evaluate Defendants DDLLC and SAFRANEK for loss mitigation before four full monthly installments due under the mortgage were unpaid (24 C.F.R. 203.605) and Plaintiff commenced this foreclosure action before three full monthly installments due under the mortgage were unpaid (C24 C.F.R. 203.606) AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE Plaintiff failed to comply with the requirements for the notice of default in Defendants DDLLC and SAFRANEK’s mortgage loan agreement, a condition precedent to this foreclosure action. Additionally, Plaintiff failed to comply with the requirements of NYRPAPL 1304, a condition precedent to this foreclosure action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE The Court lacks jurisdiction over this proceeding upon the grounds that Petitioner has no standing to initiate this action as it has not complied with New York Limited Liability Statute §206, in that within one hundred twenty (120) days after the effectiveness of its initial articles of organization, it failed to publish once in each week, for six successive weeks, in two newspapers of the county, in which the office of the limited liability company is located, a copy of the same or a notice containing the substance thereof, and accordingly, Petitioner has no legal capacity to sue pursuant to CPLR §3211(a)(3). AS AND FOR A TENTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff and/or Plaintiff and or its predecessor(s) in interest violated various provisions of the Truth in Lending Act (“TILA”), which is codified at 15 U.S.C. section 1601 et seq. and Regulation Z section 226 et seq. by inter alia: a) failing to deliver to the Defendants DDLLC and SAFRANEK two copies of notice of the right to rescind (with all of the 3 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 pertinent statutory disclosures); b) failing to properly and accurately disclose the “amount financed”; c) failing to clearly and accurately disclose the “finance charge”; d) failing to clearly and accurately disclose the “total of payments”; e) failing to clearly and accurately disclose the “annual percentage rate”; f) failing to clearly and accurately disclose the number, amounts and timing of payments scheduled to repay the obligation; g) failing to clearly and accurately itemize the amount financed. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff and or Plaintiff and or its predecessor(s) in interest violated various provision of the Real Estate Settlement Procedure Act (“RESPA”), which is codified at 12 U.S.C. section 2601, et seq. by, inter alia: i) Failing to provide the Housing and Urban Development (HUD) special information booklet, a Mortgage Servicing Disclosure Statement and Good Faith Estimate of settlement/closing costs to Defendants DDLLC and SAFRANEK at the time of the loan application or with three (3) days thereafter); ii) failing to provide Defendants DDLLC and SAFRANEK with an annual Escrow Disclosure Statement for each of year of the mortgage since its inception; iii) giving or accepting fees, kickbacks and/or other things of value in exchange for referrals of settlement service business, and splitting fees and receiving unearned fees for services not actually performed; iv) charging a fee at the time of the loan closing for the preparation of truth-in-lending, uniform settlement and escrow account statements. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff and or its predecessor(s) in interest violated various provisions of the Home Ownership Equity Protection Act (“HOEPA”) pursuant to 15 4 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 USC § 1639 et seq. by failing to make proper disclosures and committing intentional predatory lending by including prohibited terms. These violations provide an extended three year right to rescission and enhanced monetary damages for the Defendants DDLLC and SAFRANEK. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Upon information and belief, in addition to the facts alleged in the preceding paragraphs, the Plaintiff and or Plaintiff and or its predecessor(s) in interest also violated the Unfair Trade Practices Act, Administrative Code of City of NY § 20-700 by: i) Failing to promptly and/or properly pay taxes or insurance premiums when due, so that the maximum tax discount available to Defendants DDLLC and SAFRANEK could be obtained on Defendants DDLLC and SAFRANEK’s property and so that insurance coverage on the property would not lapse; and ii) failing to provide Defendants DDLLC and SAFRANEK with an annual statement of the escrow account kept for payment of taxes and insurance; and iii) failing to properly disclose at or prior to closing all costs, fees and expenses associated with the loan; iv) charging excessive fees and making payments of fees to parties not entitled to receive them; v) obtaining a yield spread premium (YSP) based upon the “selling” of a higher interest rate, and/or non-disclosure of the range of interest rates for which Defendants DDLLC and SAFRANEK qualified; vi) all such actions by Plaintiff and or its predecessor(s) in interest are unconscionable acts or practices, and/or unfair or deceptive acts or practices in the conduct of trade or commerce AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff does not have standing to bring a foreclosure action as Plaintiff is not in physical possession of the mortgage note. In order to bring a foreclosure action in New York, plaintiff must own both the mortgage and note at the inception 5 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 of the action; Deutsche Bank National Trust Company v. Barnett, 88 A.D.3d 636, 931 N.Y.S.2d 630, 2011 WL 4600619 (2d Dep’t 2011) (“plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced). Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dep’t. 1988) (absent the transfer of the debt (the note), assignment of the mortgage is a nullity); Katz v. Eastville Realty Co., 249 A.D.2d 243, 672 N.Y.S.2d 308 (1st Dep’t. 1998) (legal or equitable interest in mortgage is required to foreclose); see also Federal National Mortgage Association v. Youkelsone, 303 A.D.2d 546, 755 N.Y.S.2d 730 (2d Dep’t. 2003) (mortgage is merely incident to and collateral security for the debt; assignment of mortgage alone does not pass the debt itself); U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dep’t 2009) (incomplete and conflicting evidence insufficient to establish that MERS effectively transferred the note to plaintiff prior to the commencement of the action).The note and the mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S. 271 (1872). For an assignee of a mortgage loan to have standing to foreclose, the assignment must be complete when the action is commenced. Ownership of the note and mortgage may be established by the lending documents themselves, or by assignment. An assignment can be made in writing or by physical delivery of the mortgage and note. See Deutsche Bank Nat. Trust Co. v. McRae, 27 Misc.3d 247, 894 N.Y.S.2d 729 (N.Y.Sup. 2010). If an assignment is in writing, “the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage 6 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 was, in fact, previously effectuated.” See LaSalle Bank N.A. at Trustee v. Ahearn, 59 A.D.3d 911 (3d Dep’t 2009) (retroactive assignment ineffective to confer standing upon assignee in foreclosure action commenced prior to execution of assignment). Accord, Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709, 888 N.Y.S.2d 914 (2d Dep’t 2009) (retroactive assignment executed after commencement of action ineffective to confer standing on assignee in foreclosure action commenced before execution of assignment); Wells Fargo Bank N.A. v. Marchione, 69 A.D.3d 204, 887 N.Y.S.2d 615 (2d Dep’t 2009) (affirming dismissal where assignment was executed after filing of action but before service of summons and complaint; commencement of action measured by filing, not by service; execution date of assignment is controlling; retroactive assignment ineffective); Bank of New York v. Andrade, (Sup. Ct. Queens Co, Index No. 9700/2007 June 3, 2010) (granting motion to vacate judgment of foreclosure and sale and dismissing action without prejudice for lack of standing where assignment was executed after action’s commencement and backdated, even though court had previously signed an order of reference and a judgment of foreclosure and sale); See U.S. Bank N.A. v. Dellarmo, 294 A.D.3d 746, 942 N.Y.S.2d 122 (2d Dept. 2012) (reversing trial court's denial of motion to dismiss for lack of standing, finding no standing where corrective assignment relied upon by plaintiff had no retroactive effect and where there was no evidence of prior physical delivery, and where both the unrecorded initial assignment and the recorded corrective assignment reflected assignment of only the mortgage, and not the note). AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff failed comply with RPAPL 1303. In addition, the process server's affidavit of service did not indicate that the notice served upon Defendants DDLLC and SAFRANEK 7 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 complied with all of the requirements of RPAPL 1303, including utilizing the proper typeface and that “"requires the foreclosing party to deliver, along with the summons and complaint, a notice titled 'Help for Homeowners in Foreclosure' in residential foreclosure actions involving owner- occupied, one-to-four family dwellings. The statute mandates that the notice include specific language relating to the summons and complaint, sources of information and assistance, rights and obligations, and foreclosure rescue scams. It also mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type" (see Flagstar Bank, FSB v Hart, 184 AD3d 626, 628, 123 N.Y.S.3d 515; cf. US Bank N.A. v Hunte, 176 AD3d 894, 897, 110 N.Y.S.3d 53; LNV Corp. v Sofer, 171 AD3d 1033, 1036, 98 N.Y.S.3d 302). In addition, "proper service of the notice required by RPAPL 1303 . . . is a condition precedent to the commencement of a foreclosure action, and it is the plaintiff's burden to show compliance with that statute" (U.S. Bank N.A. v Ahmed, 174 AD3d 661, 664, 106 N.Y.S.3d 78) and Plaintiff has failed to prove they are in compliance. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to comply with RPAPL 1306. HN2 RPAPL 1306 (1) provides that in an action to foreclose a mortgage, lenders "shall file with the superintendent of financial services . . . within three business days of the mailing of the notice required by [RPAPL 1304]" a form containing certain information regarding the borrower and the mortgage (see id. § 1306 [2]). AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 8 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 Plaintiff brought this action without providing notice to Defendants DDLLC and SAFRANEK of Defendants DDLLC and SAFRANEK’s right to dispute the debt, pursuant to the Fair Debt Collection Practices Act. Plaintiff is required to notify Defendants DDLLC and SAFRANEK, pursuant to 15 U.S.C §§ 1601, et seq., that Defendants DDLLC and SAFRANEK may dispute the debt and Plaintiff is required to provide verification of the debt. Defendants DDLLC and SAFRANEK hereby dispute the debt and demand that Plaintiff verify the debt in accordance with the Fair Debt Collection Practice Act. Plaintiff is required to suspend litigation until verification of the debt at issue. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE Defendants DDLLC and SAFRANEK raise each and every defense available under the applicable laws of the State of New York. Defendants DDLLC and SAFRANEK reserve the right to raise any additional defenses available to them pursuant to New York State and City law based upon any information discovered as this matter progresses toward trial and given a reason notice to the plaintiff. 9 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 WHEREFORE, Defendants DORA DEANE LLC and AMY ELISE SAFRANEK kindly and respectfully request that this Court: (i) Dismiss Plaintiff’s complaint in its entirety hereby with prejudice; and (ii) Award Defendants costs and disbursements incurred in the defense and the prosecution of this suit; and (iii) Award Defendants their attorneys’ fees and costs pursuant to RPL§ 234; and (iv) Grant Defendants any and such further relief as the Court may deem just and proper. Dated: New York, New York April 26, 2024 _________________ Steven J. Czik, Esq. CZIK LAW PLLC Attorneys for Defendants Dora Deane LLC and Amy Elise Safranek 401 Greenwich Street New York, New York 10013 (212) 413-4462 TO: MCCABE, WEISBERG & CONWAY, LLC Attorney for Plaintiff Via NYSCEF 10 of 11 FILED: SUFFOLK COUNTY CLERK 04/26/2024 07:25 PM INDEX NO. 603298/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/26/2024 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) The undersigned attorney for Defendants hereby affirms under penalty of perjury and pursuant to CPLR §2106 the following: 1. The deponent is the attorney for Defendants DORA DEANE LLC and AMY ELISE SAFRANEK. 2. The deponent has read the attached Verified Answer and that the contents of the same are alleged upon information and belief. 3. The grounds of my belief as to all matters not stated upon my knowledge and conversations with Defendant. 4. This verification is made pursuant to CPLR as Defendant AMY SAFRANEK, also principal of DORA DEANE LLC is currently not present in the county of deponent’s office. Dated: New York, New York April 26, 2024 Steven J. Czik, Esq. CZIK LAW PLLC Attorneys for Defendants Dora Deane LLC and Amy Elise Safranek 401 Greenwich Street New York, New York 10013 (212) 413-4462 11 of 11