Preview
FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MADISON
Specialized Loan Servicing LLC, INDEX NO.: EF2024-1207
Plaintiff, REPLY TO VERIFIED ANSWER
AND COUNTERCLAIMS TO
vs. PLAINTIFF’S COMPLAINT
Brenda Treece; The Estate of Phillip W. Fancher;
Unknown Heirs of the Estate of Phillip W. Fancher; New MORTGAGED PROPERTY:
York State Department of Taxation and Finance; United 4381 Francis Road
States of America o/b/o Internal Revenue Service; John
Cazenovia, NY 13035
Doe #1 through #6, and Jane Doe #1 through #6, the last
twelve names being fictitious, it being the intention of
Plaintiff to designate any and all occupants, tenants,
Block: 97. Block: 2 Lot: 2.22
persons or corporations, if any, having or claiming an
interest in or lien upon the premises being foreclosed
herein,
Defendant.
Plaintiff Specialized Loan Servicing LLC (“Plaintiff”), by its counsel, McCalla Raymer
Leibert Pierce, LLC, as and for its Reply to Defendant-Counterclaimant’s Brenda Treece, Verified
Answer to Foreclosure Complaint and Counterclaims to Plaintiff’s Complaint (“Answer”) filed by
Defendant, states as follows:
FOR A RESPONSE TO DEFENDANT’ AFFIRMATIVE DEFENSES
1. Paragraphs labeled “Lack of Standing”, “Predicate Notices/Condition
Precedent”, “Real Estate Settlement Procedures Act”, “Excessive Interest”, and “Action
Commenced Against a Deceased Party”, in Defendant’s Answer, including any and all subparts
thereof, contain only Defendant’s answer to Plaintiff’s complaint, affirmative defenses and/or legal
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conclusions to which no responses are required; but to the extent responses are required, Plaintiff
denies the allegations contained in the above-referenced paragraphs of the Answer.
FOR A RESPONSE TO DEFENDANT’S COUNTERCLAIM
2. Plaintiff denies that Paragraphs labeled “Other Defenses or Counterclaims”
constitute a Counterclaim, but to the extent the Court deems such language to be a valid
Counterclaim, Plaintiff states that such counterclaim sets forth conclusions of law as to which no
response is required. To the extent a response is required, Plaintiff denies each and every allegation
set forth in such Counterclaim.
FOR A RESPONSE TO DEFENDANT’ RELIEF REQUESTED
1. Plaintiff denies that Defendant is entitled to dismissal of the Complaint, or
any other Relief as requested in the “WHEREFORE” section of the Verified Answer.
GENERAL DENIAL
2. Plaintiff denies any and all allegations not specified above.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
3. Defendant’ claim and/or cause of action is barred, in whole or in part,
by the applicable statute of limitations.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
4. Defendant’ claims are barred, in whole or in part, by the terms and
conditions of the governing loan documents.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
5. Plaintiff possesses a defense founded upon documentary evidence.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
6. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the doctrine of unjust enrichment.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
7. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the doctrines of laches, estoppel and/or waiver.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
8. Defendant’ Counterclaims fails to state a legally cognizable claim or cause
of action upon which relief can be granted.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
9. Defendant has not alleged or sustained any damages that were caused by
Plaintiff, or for which Plaintiff is, or could be, legally responsible.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
10. Defendant failed to mitigate any damages Defendant may have incurred. In
asserting this affirmative defense, Plaintiff does not admit liability due to Defendant’ injury alleged
in the Answer, nor does Plaintiff admit that such damages exist.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
11. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the statute of frauds.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
12. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the parol evidence rule.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
13. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the doctrine of unclean hands.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
14. Defendant’ claim and/or cause of action is barred, in whole or in part, by
the doctrine of ratification.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
15. Defendant’ claim and/or cause of action is barred or preempted by federal
law.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
16. Plaintiff hereby gives notice that it intends to rely upon any other and
additional defenses that are now or may become available during or as a result of the discovery
proceedings in this action, and hereby reserves its right to amend this Reply to Verified Answer
with Counterclaims to assert such defense.
WHEREFORE, in addition to the relief requested in Plaintiff’s Complaint, Plaintiff
respectfully requests that Defendant’ Counterclaims and each and every cause of action and
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defense alleged therein be dismissed with prejudice against Plaintiff, together with such other
and further relief as the Court may deem just and proper.
Dated: April 17, 2024
New York, New York
__/s/ Nadine D. Smith___________
Nadine D. Smith, Esq.
McCalla Raymer Liebert Pierce, LLC
420 Lexington Avenue, Suite 840
New York, New York 10170
Phone: 347-286-7409
Attorneys for Plaintiff
Specialized Loan Servicing LLC,
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024
ATTORNEY VERIFICATION
Nadine D. Smith, an attorney duly admitted to practice law before the Courts of
this State and associated with McCalla, Raymer, Leibert, Pierce, LLC., counsel for Plaintiff
Specialized Loan Servicing LLC (“Plaintiff”) affirms the following under penalty of perjury:
I have read the foregoing Reply and know the contents thereof, and it is true to
my own knowledge except as to any matters therein stated to be alleged upon information and
belief, and that as to those matters, I believe them to be true. The grounds of my belief as to all
matters not stated upon my knowledge are correspondence and other writings furnished to me
by the Plaintiff and discussions with the Plaintiff or its agents. The reason this Verification is
not made by the answering Plaintiff is because Plaintiff is a corporation, none of whose officers
are presently within the county where my office is located.
Dated: April 17, 2024
New York, New York
/s/ Nadine D. Smith_
Nadine D. Smith, Esq.
McCalla Raymer Liebert Pierce, LLC
420 Lexington Avenue, Suite 840
New York, New York 10170
Phone: 347-286-7409
Specialized Loan Servicing, LLC,
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FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MADISON
Specialized Loan Servicing LLC, AFFIRMATION OF SERVICE
Plaintiff, INDEX NO.: EF2024-1207
vs.
Brenda Treece; The Estate of Phillip W. Fancher;
Unknown Heirs of the Estate of Phillip W. Fancher;
New York State Department of Taxation and
Finance; United States of America o/b/o Internal
Revenue Service; John Doe #1 through #6, and
Jane Doe #1 through #6, the last twelve names
being fictitious, it being the intention of Plaintiff to
designate any and all occupants, tenants, persons or
corporations, if any, having or claiming an interest
in or lien upon the premises being foreclosed
herein,
Defendant.
Nadine D. Smith Esq., an attorney admitted to practice in the courts of this State, subscribes
and affirms under penalty of perjury pursuant to CPLR §2106 that on April 17, 2024, she caused
a true and complete copy of Reply to Verified Answer With Counterclaim, to be served upon:
Brenda Treece The Estate of Phillip W. Fancher
4381 Francis Road 4381 Francis Road
Cazenovia NY 13035 Cazenovia NY 13035
Defendant, pro se
Heirs to the Estate of Phillip W. Fancher New York State Department of Taxation and
4381 Francis Road Finance
Cazenovia NY 13035 W.A. Harriman Campus
Albany NY 12227
United States of America o/b/o Internal Revenue
Service
271 Cadman Plaza,
Brooklyn, NY 11201
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024
by depositing a true and complete copy of same in a properly addressed, pre-paid envelope within
the custody and care of United States Postal Service.
/s/ Nadine D. Smith _________
Date: April 17, 2024 By:
Nadine D. Smith, Esq.
McCalla Raymer Liebert Pierce, LLP
420 Lexington Avenue, Suite 840
New York, New York 10170
Phone: 347-286-7409
Attorneys for Plaintiff
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Preview
FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MADISON Specialized Loan Servicing LLC, INDEX NO.: EF2024-1207 Plaintiff, REPLY TO VERIFIED ANSWER AND COUNTERCLAIMS TO vs. PLAINTIFF’S COMPLAINT Brenda Treece; The Estate of Phillip W. Fancher; Unknown Heirs of the Estate of Phillip W. Fancher; New MORTGAGED PROPERTY: York State Department of Taxation and Finance; United 4381 Francis Road States of America o/b/o Internal Revenue Service; John Cazenovia, NY 13035 Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, Block: 97. Block: 2 Lot: 2.22 persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendant. Plaintiff Specialized Loan Servicing LLC (“Plaintiff”), by its counsel, McCalla Raymer Leibert Pierce, LLC, as and for its Reply to Defendant-Counterclaimant’s Brenda Treece, Verified Answer to Foreclosure Complaint and Counterclaims to Plaintiff’s Complaint (“Answer”) filed by Defendant, states as follows: FOR A RESPONSE TO DEFENDANT’ AFFIRMATIVE DEFENSES 1. Paragraphs labeled “Lack of Standing”, “Predicate Notices/Condition Precedent”, “Real Estate Settlement Procedures Act”, “Excessive Interest”, and “Action Commenced Against a Deceased Party”, in Defendant’s Answer, including any and all subparts thereof, contain only Defendant’s answer to Plaintiff’s complaint, affirmative defenses and/or legal 1 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 conclusions to which no responses are required; but to the extent responses are required, Plaintiff denies the allegations contained in the above-referenced paragraphs of the Answer. FOR A RESPONSE TO DEFENDANT’S COUNTERCLAIM 2. Plaintiff denies that Paragraphs labeled “Other Defenses or Counterclaims” constitute a Counterclaim, but to the extent the Court deems such language to be a valid Counterclaim, Plaintiff states that such counterclaim sets forth conclusions of law as to which no response is required. To the extent a response is required, Plaintiff denies each and every allegation set forth in such Counterclaim. FOR A RESPONSE TO DEFENDANT’ RELIEF REQUESTED 1. Plaintiff denies that Defendant is entitled to dismissal of the Complaint, or any other Relief as requested in the “WHEREFORE” section of the Verified Answer. GENERAL DENIAL 2. Plaintiff denies any and all allegations not specified above. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 3. Defendant’ claim and/or cause of action is barred, in whole or in part, by the applicable statute of limitations. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 4. Defendant’ claims are barred, in whole or in part, by the terms and conditions of the governing loan documents. 2 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 AS AND FOR A THIRD AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 5. Plaintiff possesses a defense founded upon documentary evidence. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 6. Defendant’ claim and/or cause of action is barred, in whole or in part, by the doctrine of unjust enrichment. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 7. Defendant’ claim and/or cause of action is barred, in whole or in part, by the doctrines of laches, estoppel and/or waiver. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 8. Defendant’ Counterclaims fails to state a legally cognizable claim or cause of action upon which relief can be granted. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 9. Defendant has not alleged or sustained any damages that were caused by Plaintiff, or for which Plaintiff is, or could be, legally responsible. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 10. Defendant failed to mitigate any damages Defendant may have incurred. In asserting this affirmative defense, Plaintiff does not admit liability due to Defendant’ injury alleged in the Answer, nor does Plaintiff admit that such damages exist. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 11. Defendant’ claim and/or cause of action is barred, in whole or in part, by the statute of frauds. 3 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 AS AND FOR A TENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 12. Defendant’ claim and/or cause of action is barred, in whole or in part, by the parol evidence rule. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 13. Defendant’ claim and/or cause of action is barred, in whole or in part, by the doctrine of unclean hands. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 14. Defendant’ claim and/or cause of action is barred, in whole or in part, by the doctrine of ratification. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 15. Defendant’ claim and/or cause of action is barred or preempted by federal law. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 16. Plaintiff hereby gives notice that it intends to rely upon any other and additional defenses that are now or may become available during or as a result of the discovery proceedings in this action, and hereby reserves its right to amend this Reply to Verified Answer with Counterclaims to assert such defense. WHEREFORE, in addition to the relief requested in Plaintiff’s Complaint, Plaintiff respectfully requests that Defendant’ Counterclaims and each and every cause of action and 4 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 defense alleged therein be dismissed with prejudice against Plaintiff, together with such other and further relief as the Court may deem just and proper. Dated: April 17, 2024 New York, New York __/s/ Nadine D. Smith___________ Nadine D. Smith, Esq. McCalla Raymer Liebert Pierce, LLC 420 Lexington Avenue, Suite 840 New York, New York 10170 Phone: 347-286-7409 Attorneys for Plaintiff Specialized Loan Servicing LLC, 5 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 ATTORNEY VERIFICATION Nadine D. Smith, an attorney duly admitted to practice law before the Courts of this State and associated with McCalla, Raymer, Leibert, Pierce, LLC., counsel for Plaintiff Specialized Loan Servicing LLC (“Plaintiff”) affirms the following under penalty of perjury: I have read the foregoing Reply and know the contents thereof, and it is true to my own knowledge except as to any matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. The grounds of my belief as to all matters not stated upon my knowledge are correspondence and other writings furnished to me by the Plaintiff and discussions with the Plaintiff or its agents. The reason this Verification is not made by the answering Plaintiff is because Plaintiff is a corporation, none of whose officers are presently within the county where my office is located. Dated: April 17, 2024 New York, New York /s/ Nadine D. Smith_ Nadine D. Smith, Esq. McCalla Raymer Liebert Pierce, LLC 420 Lexington Avenue, Suite 840 New York, New York 10170 Phone: 347-286-7409 Specialized Loan Servicing, LLC, 6 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MADISON Specialized Loan Servicing LLC, AFFIRMATION OF SERVICE Plaintiff, INDEX NO.: EF2024-1207 vs. Brenda Treece; The Estate of Phillip W. Fancher; Unknown Heirs of the Estate of Phillip W. Fancher; New York State Department of Taxation and Finance; United States of America o/b/o Internal Revenue Service; John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendant. Nadine D. Smith Esq., an attorney admitted to practice in the courts of this State, subscribes and affirms under penalty of perjury pursuant to CPLR §2106 that on April 17, 2024, she caused a true and complete copy of Reply to Verified Answer With Counterclaim, to be served upon: Brenda Treece The Estate of Phillip W. Fancher 4381 Francis Road 4381 Francis Road Cazenovia NY 13035 Cazenovia NY 13035 Defendant, pro se Heirs to the Estate of Phillip W. Fancher New York State Department of Taxation and 4381 Francis Road Finance Cazenovia NY 13035 W.A. Harriman Campus Albany NY 12227 United States of America o/b/o Internal Revenue Service 271 Cadman Plaza, Brooklyn, NY 11201 7 of 8 FILED: MADISON COUNTY CLERK 04/17/2024 01:33 PM INDEX NO. EF2024-1207 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/17/2024 by depositing a true and complete copy of same in a properly addressed, pre-paid envelope within the custody and care of United States Postal Service. /s/ Nadine D. Smith _________ Date: April 17, 2024 By: Nadine D. Smith, Esq. McCalla Raymer Liebert Pierce, LLP 420 Lexington Avenue, Suite 840 New York, New York 10170 Phone: 347-286-7409 Attorneys for Plaintiff 8 of 8